9911796707
TMI Blog2010 (9) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... as the last date for filing the appeal was 5-2-2009. It is his submission that the delay being marginal may be condoned. 3. The learned Consultant Shri Moheb Ali, appearing on behalf of the Respondents, submits that the application for the condonation of delay is improper. It is his submission that the Review Order of the Committee of Commissioners has only directed the Assistant Commissioner to file an appeal before the Tribunal. It is his submission that the Committee, under the provisions of Section 129E of the Customs Act, can only direct to file an appeal. For filing application for condonation of delay, another authorization is required and which is absent when the application for condonation of delay was filed. It is his submission that the application for condonation of delay may be dismissed on this ground itself. 4. On preliminary objections, we find that there is no dispute that the appeal was dispatched from the office of the Assistant Commissioner on 30th January, 2009, but received in Registry on 9th February, 2009. The delay is marginal and may be due to postal delay and other technical reasons. This bench had directed the appellant to move an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals). The learned Commissioner (Appeals), vide the impugned order, after considering the submissions made by the assessee and the Grounds of Appeal raised by the Revenue, held that the O-I-O was correct and does not require any interference. Aggrieved by such an order, Revenue is before us. 6. The learned DR while assailing the order would submit as under :- (1) It is not clear from the O-I-A of the learned Commissioner (Appeals) that how he came to the conclusion that the goods imported by the assessee are principally used in an Automatic Data Processing Machine Systems (ADPS), though they can be connected to VCD/DVD players, LCD players, etc. It is his submission that there is no clear and sharp line of difference existing in terms of quality of the pictures between the projectors which are principally used with ADPS and which are used otherwise. (2) The examples of "Computer Beamers" and "Data Projectors" were cited by the Department to show that the goods were having all the inputs to be connected with ADPS only while in the goods imported by the assessee, there was an additional input wherein another machine can be attach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the US Tariff Heading No. 8528.30.6800 is pari materia with our Customs Chapter Heading No. 85286900. 6.2 Besides these rulings, he has not relied upon any other rulings and has relied upon the General Rules for Interpretation of Import Tariff. 7. The learned Consultant, on the other hand, would submit that the respondent had demonstrated before the learned Commissioner (Appeals) that the goods imported by them are of a kind which are principally used with machines falling under Chapter Heading 8471 because of their peculiar features and had also demonstrated that how they are different from other projectors which are used in conjunction with DVD Players, Video gaming devices, etc. and how the projectors are different from the ones used in entertainment industry. It is his submission that both the lower authorities, after considering the pleas made before them, concluded that the items imported by the assessee would fall under sub-heading 8528 61 00. It is his submission that the Revenue is not disputing the goods imported by them are Projectors but the dispute is only regarding whether the said Projectors were principally and solely used along with Automatic Data ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 8.2 In order to appreciate the dispute between the parties, it is necessary to reproduce the rival entries, which are as under :- Tariff Item Description of goods Unit Rate of duty Standard Preferential Areas (1) (2) (3) (4) (5) 8528 61 00 Projectors of a kind solely or principally used in an automatic data processing system of heading 8471 u 10% - 8528 69 00 Other u 10% - 8.3 It can be seen from the above reproduced entries that the entry 8528 61 00, as claimed by the assessee and allowed by both the lower authorities, indicates that the Projectors should be of a kind solely or principally used in an Automatic Data Processing System of Heading No. 8471 while 8528 69 00 talks about 'Other'. 8.4 It is undisputed that the goods imported by the assessee are Projectors. It is also undisputed that the said projectors have to be used in conjunction with ADPS. The only question is whether these projectors can be used solely or principally with the ADPS. We find that the Adjudicating Authority has clearly recorded a categorical finding in his OIO, that the words solely or principally should mean that the projectors should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion can by no conceivable process of welding be brought under any of the tariff items, resort cannot be had to the residuary item". We find that in the case before us, the Revenue has not established that the goods imported by the assessee were of a category, which cannot be used along with ADPS and nor there is any evidence to indicate that the said goods were and can be used without ADPS. Revenue has failed to produce any evidence before the lower authorities and before us also to indicate that the product merits classification under the residuary sub heading 85286900. 8.6 As we have already herein above held that 8528 69 00 being a residuary tariff entry, it was for the Revenue to lead an evidence that the goods imported by the assessee would get classified under this heading. In the absence of any contrary evidence to the evidence placed by the assessee before the lower authorities, we are of the firm view that the Revenue's appeal is devoid of merits and needs to be rejected. 8.7 Before parting with the case, we would like to record that the decisions relied upon by the learned DR would not carry the case of the Revenue any further as in those decisions, the Unit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
