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TMI Blog2016 (11) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... microprocessor for computer, other than motherboards, (b) floppy disc drive (c) hard disc drive (d) CD-ROM drive (e) DVD Drive/DVD writer (f) flash memory and (g) combo drive. Commissioner of Customs (Import), Air Cargo Complex, Sahar, vide order-in-original no. CC-RS/08/2014-15 ACC (Adj) (I) dated 28th November 2014, denied them the exemption under this notification and, instead, allowed them the benefit of notification no.2/2008-CE dated 1st March 2008 at 10% till 16th March 2012 and at 12% thereafter. The two impugned orders adjudicated imports at Air Cargo Complex, Sahar, Air Cargo Complex, New Delhi, Air Cargo Complex, Chennai, Air Cargo Complex Kolkata and Air Cargo Complex, Bangalore. Eight show cause notices had been issued at the respective cargo complexes and the Central Board of Excise & Customs designated the Commissioner of Customs (Import), Air Cargo Complex, Sahar as the common adjudicating authority for the disputes with the two importers. The adjudicating Commissioner held that the qualification 'removable' in the description relating to heading 84717030 of the Schedule to the Central Excise Tariff Act, 1985 is applicable to external storage devices; that har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emi Industries Ltd v. Commissioner of Central Excise [2008 (230) ELT 505 (Tri.-Ahmd.)]; Rapti Commission Agency v. State of U P & Others [(2006) 6 SCC 522]; Koya & Co Construction Pvt Ltd v. Commissioner of Central Excise, Visakhapatnam - II [2013 (298) ELT 232 (Tri.-Bang.)]; Nestle India Ltd v. Collector of Central Excise, Chandigarh [2004 (178) ELT 590 (Tri.-Del.)]; Goldensun Laboratories v. Commissioner of Central Excise, Surat - I [2002 (145) ELT 430 (Tri.-Mumbai)]; Commissioner of Central Excise, Mumbai - III v. Narendrakumar & Co. [2008 (232) ELT 866 (Tri. Mumbai)]; Commissioner of Customs, Amritsar v. Jyoti Industries [2007 (209) ELT 180 (P&H)]; Neotric Informatique Ltd v. Commissioner of Customs (Import), Nhava Sheva [2015 (318) ELT 701 (Tri.-Mumbai)]; Devraj M. Salian v. Commissioner of Customs (I), Mumbai 2015 (316) ELT 139 (Tri.-Mumbai)]; Commissioner of Customs, Calcutta v. G.C. Jain [2011 (269) ELT 307 (S.C.)]; Union of India v. Garware Nylons Ltd [1996 (87) ELT 12 (SC); Indo-International Industries v. Commissioner of Sales Tax, U.P. [1981 (8) ELT 325 (SC)]; Northern Plastic Ltd v. Collector of Customs & Central Excise [1998 (101) ELT 549 (SC)]; Densons Pultretaknik v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption notification specifies the products that are entitled to the privileges of the notification. In addition, the relevant entries do incorporate the classification upto the sixth digit in relation to goods falling in chapter 84. Entry 847170 is for storage units which, in computer technology, are many and varied; these are appropriately distinguished among seven types and a residuary heading. Disc drives are of five varieties, viz., floppy disc, hard disc, removable or exchangeable disc, compact disc and digital video disc. Of these, four are specifically described as eligible for exemption; apparently, there is some specific logic for exclusion of removable or exchangeable disc drive. In resolving the dispute, we do not have to concern ourselves with the other products that do not intrude into this matter. 8. We do not have any definition within the tariff to fall back on. We are also bereft of any ruling in a decision of the Tribunal, High Courts or the Hon'ble Supreme Court. We are not favoured by any assistance from the decision in re Tata Consultancy Services Ltd dealing, as it does, with the convergence of disk array with hard disc drive; it must be noted that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hard disk contains the media and the mechanism for identifying the location of data that is to be sent for processing by the computer. The drive and the media invariably exist in the fixed as well as the removable hard disk. This is particularly so in a hard disk drive which is essential for the computer to perform its assigned tasks. The 'floppy disc' driven computers barely lasted a short period of the 1980s. Floppy discs were removable and hence did not require distinguishing from the drive which was in the machine. Likewise, the media of DVD drives or compact discs are distinct from the drive within the machine and these are optionals in the modern computer. However, the hard disk drive - at least, the primary one - is not an optional as the operating system that enables the computer to start functioning, and to engage with other software, resides in the hard disc. Necessarily, this essential hard disc remains within the casing that houses the main processor and memory. All other hard discs, and other storage media, are options to provide greater operating flexibility. The distinction between removable or exchangeable disc drive and the hard disc drive is the presence of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed clearance with a cursory examination except in the few cases where it is so warranted otherwise. Therefore, there is neither a bar on querying the declared classification at any time nor can it be a valid defence that acceptance of declaration in a past import is an acknowledgement of declaration having been true and correct. 16. It is not uncommon for importers to align description of imported goods, not with the tariff entries, but with descriptions in exemption notification and continuing with that description until the misdeclaration is unearthed. The differential duty is adequate motive for suppression of facts relevant to assessment. The notice issued to appellant alleges that, in the bills of entry, the description did not bring on record that these drives were portable; no justifiable counter to this allegation has been furnished before the adjudicating authority. The plea of limitation raised before us is, therefore, not tenable. The individuals are equally responsible for the evasion of duty. 17. Consequently, the imports of the appellants are liable to be classified under 84717030 and not 84717020 of the Schedule to the Central Excise Tariff Act, 1985. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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