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TMI Blog2016 (4) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... er a generic tariff heading. In the instant case, the onus was on the department to justify the change of classification sought to be made by the impugned circular, which onus, in my opinion, has not been discharged by the Department. Thus, it is evident that the impugned circular is blatantly contrary to the said Rule and is thus, not sustainable. Challenge to circular - Department contended that once agreed to the assessment made by the Department, the petitioner cannot be permitted to challenge the said assessment or the impugned circular on the basis whereof the assessment was made - Held that:- non-mentioning of any and every fact does not amount to suppression of material facts. A material fact is one that would have a bearing on the decision of the court. Even if the petitioner mentioned in the writ petition about the factum of he having initially agreed with the Department's assessment, my decision would not have been any different. This is so because there can be no estoppel against the statute. S. 11A of the Customs Tariff Act does not countenance amendment of the First Schedule to the said Act by issuance of a mere departmental circular. The method in which the First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 969 dated 29th January, 2015 along with necessary documents namely invoice, packing list, bill of lading, etc. for clearance of the goods for home consumption. The said goods were declared under CTH 90189031. (3) The Department withheld the Hollow Fiber Dialyzers on the plea that the said goods have to be classified under CTH 84212900 in terms of Circular No. 19/2013-CUS dated 9th may, 2013 instead of CTH 90189031. (4) For more than two months the department sat tight over the assessment of the bill of entry, as a result whereof, the petitioner had to suffer loss amounting to approximately ₹ 3 lacs on account of demurrage and detention charges. (5) Left with no other option, and to minimise his loss, the petitioner paid the duty under protest under cover of a letter dated 7th April, 2015 and the Department classified the said goods under CTH 84212900 in terms of the aforesaid circular. (6) The petitioner has challenged the said circular as being ultra vires the Customs Act and violative of Arts. 14, 19(1)(g) and 265 of the Constitution of India. (7) The dialyzer is an equipment that actually filters the blood. Almost all dialyzer in use today are of the hollow- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said circular has sought to change the classification of the goods in question from a CTH having a specific description to another CTH having a generic description. This is not permissible in law. A circular cannot override the statute as has been sought to be done in the instant case rendering the impugned circular bad in law and ultra vires the provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975 and in gross violation of Article 14 of the Constitution of India. Classification of goods can only be changed by way of a notification as laid down in Section 11A of the Customs Tariff Act and every such notification has been laid before both Houses of Parliament. (12) CTH 84212900 speaks of goods which are filtering or purifying machinery and apparatus for liquids or gases. Such goods are meant purely for industrial purpose and do not have any medical use. On the other hand, CTH 90189031 specifically classifies goods as 'Renal dialysis equipment (artificial kidneys, kidney machines and dialysers)'. Hence, the Circular under challenge is contrary to the provisions of the Customs Tariff Act, and thus, liable to be set aside. (13) In the trade, in common p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and discharge the burden of proof. It was also held that since the goods were covered by a specific heading, in that case Heading No. 25.01, the same could not be classified under the residuary heading. Rule 3(a) of the Interpretative Rules was referred to and the Supreme Court reiterated that the Heading which provides the most specific description shall be preferred to the Heading providing a more generic description. In this connection, the Supreme Court also referred to its earlier decision in the case of M/s. Bharat Forge and Press Industries (P) Ltd.-vs.- Collector of Central Excise, Baroda reported in 1990 (1) SCC 532. (b) The tariff heading can only be changed by way of a notification as laid down in Section 11A of the Customs Tariff Act, 1975. Where a power is given to do a certain thing in a certain way, they must be done only in that way or not at all and all other methods of performance are forbidden. This rule squarely applies where the whole aim and object of the legislature would be defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in some other manner. In this connection reliance was placed on the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as duty by the petitioner. On 6th April, 2015 the petitioner agreed with the said assessment of the respondent Department and declared 'WE AGREE FOR AMMEND OF ITEM NO. 1 OF THE B/E UNDER CTH 84212900 AS PER BOARD CIRCULAR NO. 19/2013 DTD. 09.05.2013' (page 40 of the supplementary affidavit-inopposition). On 8th April, 2015 the petitioner submitted a letter to the Department intimating that due to some urgency the petitioner will pay the amount of duty as assessed by the Department on protest and paid the assessed duty on 19th April, 2015. (19) It is submitted that the petitioner having agreed to the assessment as made by the Department, subsequently the petitioner cannot be allowed to turn around and challenge such assessment. The petitioner has not approached the court with clean hands since he has suppressed the fact that on 6th April, 2015 he agreed to the assessment as made by the Department. (20) Section 17 of the Customs Act, 1962 lays down the procedure for assessment of duty. Sub-Section (1) states that an importer/exporter shall self-assess the duty, if any, leviable on the goods which are being imported. Sub-Section (2) states that the proper officer of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject matter of the instant writ petition, the petitioner had imported 21 other consignments by filing 21 Bills of Entry. The respondent Department had issued a show cause cum demand notice dated 21st April, 2014 for those earlier Bills of Entry and served the said notice to the authorised representative of the petitioner by hand on the same date and also sent a copy of the notice through speed-post. The said notice was issued relying on the Circular which is challenged in the present proceeding. However, in the present writ application the petitioner has challenged only the Circular without challenging the said show cause notice. The intention of the petitioner appears to be that if he gets a favourable order in the instant proceeding, he will use the same in the adjudication proceeding which is in a nascent stage right now. Until and unless the said show cause notice attains its finality after the petitioner files his reply and order is passed, it cannot be said that the petitioner is aggrieved by the said Circular. It is to be determined whether or not the said Circular is applicable in the petitioner's case and that cannot be done without going through the proper fact findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edical instruments whereas heading 8421 under Chapter 84 pertains to goods which are generally used for industrial purposes and do not appear to have any medical use. Hence, in my opinion, the natural classification of dialysers should be under CTH 90189031 as it was prior to issuance of the impugned circular. I am in agreement with the submission of the Ld. Sr. Counsel for the petitioner that when a specific tariff heading for classification is available, the goods concerned cannot be classified under a generic tariff heading. A heading with a more specific description of the goods in question shall be preferred to and prevail over a heading with a more general description. Just as a special law in a particular field would prevail over a general law that may be operational in that field, a heading with a more specific description would prevail over a heading with a more general description. In this connection, Rule 3(a) of the General Rules for interpretation of the First Schedule to the Customs Tariff Act makes it very clear that the heading which provides the most specific description shall be preferred to headings providing a more general description. The decision of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manner in which the first schedule to the Customs Tariff Act may be amended. Such amendment may be carried out by notification in the Official Gazette and such notification must be placed before both the Houses of the Parliament for their approval. It is trite law that where a statute empowers an authority to do a certain thing in a certain way that thing must be done only in that way or not at all. All other methods of exercising such power are forbidden. This is the age old principle of law laid down by Jessell M. R. in the case of Taylor-vs-Taylor, reported in (1876) 1 Ch. D 426, reiterated in the Privy Council decision of Nazir Ahmed-vs.-Emperor, reported in AIR 1936 PC 253 and subsequently followed by our Supreme Court in innumerable cases. In this connection, reference may be given to the decision of the Hon'ble Apex Court in the case of Ramchandra Keshav Adke (dead) by LRs-vs.- Govind Joti Chavare (supra). (31) In the present case, the Department sought to amend the first schedule to the Customs Tariff Act by issuing the impugned circular. This falls foul of S. 11A of the said Act and on this ground also the impugned circular must be set aside. (32) I am inclined ..... X X X X Extracts X X X X X X X X Extracts X X X X
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