2023 (12) TMI 793 - AT - Customs

Classification of imported goods - insoluble Sulphur with trade name Crystex HS OT 20 - to be classified under CTH 2503.00.90 of Customs Tariff Act, 1975 or under CTH 3812.30.30? - appeals rejected without deciding the issue on merits taking the recourse of Section 17(5) of the Customs Act, 1962 - HELD THAT - In the present case, it is found that after rejection of the classification of the appellant declared in their Bills of Entry, they paid the duty under protest and preferred appeal before the learned Commissioner(Appeals). Therefore, the learned Commissioner(Appeals) ought to have decided the appeals on merits instead of rejecting the same by observing that the appellant has accepted the re-assessment. Further, the Hon ble Supreme Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV 2019 (9) TMI 802 - SUPREME COURT has held that Revenue as well as appellant can prefer an appeal against the order of the assessment. The impugned orders are set aside and the case is remanded to the learned Commissioner(Appeals) to decide the issue of classification on merit, after affording an opportunity of hearing to the appellant - Appeals are allowed by way of remand.

Summary

Issues involved:
The classification of imported goods under the Customs Tariff Act, 1975 and the rejection of appeals by the Commissioner of Customs(Appeals) without deciding the classification on merit.

Classification Issue:
The appellant imported insoluble Sulphur and claimed classification under CTH 2503.00.90, but the assessing authority classified the goods under CTH 3812.30.30. The appellant objected to the assessment and cleared the goods 'under protest'. The advocate argued that the goods should be classified under CTH 2503.00.90 based on specific documents and invoices. He cited Rule 3(a) of the General Rules of Interpretation and previous Tribunal decisions to support the specific classification. The Commissioner(Appeals) rejected the appeals, citing a lack of request for a speaking order by the assessing officer.

Legal Interpretation Issue:
The main question was whether the Commissioner(Appeals) was justified in rejecting the appeals without deciding on the classification issue on merits, based on Section 17(5) of the Customs Act, 1962. The Tribunal found that the Commissioner should have decided the appeals on merits since the appellant paid duty 'under protest' and filed an appeal. Citing a Supreme Court judgment, the Tribunal emphasized that both the Revenue and the appellant can appeal against an assessment order, including self-assessment.

Decision:
The Tribunal set aside the impugned orders and remanded the case to the Commissioner(Appeals) to decide the classification issue on merit after giving the appellant an opportunity to be heard. The Tribunal directed that the remand proceeding be completed within three months. All issues were kept open, and the appeals were allowed by way of remand.