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TMI Blog2017 (9) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... case warranting the bypassing of the alternative remedy of appeal, on the ground that the issue is already clinched in favour of the assessee. Therefore, the writ petition is liable to be dismissed - petition dismissed being not maintainable. X X X X Extracts X X X X X X X X Extracts X X X X ..... notice and participated in the hearing. Thereafter, the 2nd respondent passed an Order-in-Original dated 28.03.2017 rejecting the claim of the petitioner for classifying the goods under Tariff Item No.85286100 and reclassifying the same under Tariff Item No.85286900. It is against the said order that the petitioner has come up with the above writ petition. 10. Admittedly the petitioner has a statutory alternative remedy of appeal to the CESTAT under Section 129A (1) of the Customs Act, 1962. But the petitioner has chosen to bypass the alternative remedy of appeal on the ground that the issue raised before the original authority was already covered by a quasi judicial order passed by the jurisdictional Tribunal and that an attempt by a subordinate authority to over reach the order of a superior Tribunal can be nipped in the bud. Reliance is placed in this regard by Mr. S. Ravi, learned Senior Counsel appearing for the petitioner, on the decision of the Constitution Bench of the Supreme Court in Bhopal Sugar Industries Limited v. Income Tax Officer1960 (40) ITR 618 . 11. We have carefully considered the above submissions. 12. If what the petitioner contends is correct, viz., that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e connected not only to an Automatic Data Processing System (ADPS), but can also be connected to a DVD player, video camera, LCD player, audio player and even play-station for playing games. The original authority also took note of the fact that the projectors in question could actually function without being connected to ADPS or Central Processing Unit and that therefore, the essential requirement, viz., solely and principally used in ADPS, for availing the benefit of classification under Tariff Item No.85286100 was not satisfied. 16. But the appellate authority (in the first round of litigation) was convinced by the importer to think that all the technological factors were not taken into consideration by the original authority. Therefore, the appellate authority remanded the matter back to the original authority. 17. The original authority, after remand, took note of the very same comparison chart recorded in its order before remand (passed in the first instance), came to the conclusion that there are adaptors available in the market, which would facilitate even those not having AV port to be put to domestic use, and that therefore, the mere fact that these projectors can be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of any evidence, which is contrary to the findings of the lower authorities, we find that the ratio of the judgment of the Honble Supreme Court in the case of Mauri Yeast India Pvt. Ltd. (supra) would clearly cover the issue in favour of the assessee. We may reproduce the same. 30. It is now a well settled principle of law that in interpreting different entries, attempts shall be made to find out as to whether the same answers the description of the contents of the basic entry and only in the event it is not possible to do so, recourse to the residuary entry should be taken by way of last resort. 40. It is now a well settled principle of law that when two views are possible, one which favours the assessee would be adopted. (See: Bihar State Electricity Board and another v. M/s. Usha Martin Industries and it is not a case where application of a commercial meaning or trade nomenclature runs contrary to the context in which the word was used as was the case in Akbar Badrudin Giwani v. Collector of Customs: (1990) 2 SCC 203. 8.5. We find that the Honble Supreme Court, in the case of Hindustan Poles Corporation (supra) has held that the residuary entry is meant only for those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actually used. This distinction has to be kept in mind in view of the fact that it is settled law that the classification of a particular good cannot depend upon the actual use to which it is put to, by the end-user. The goods intended or meant to be used for a particular purpose, may be actually used for a completely different purpose by some end-users. The importer cannot be made to suffer a different classification on the basis of what the end-user does with the product. 21. But when the very description under a particular Tariff Item lays emphasis on sole use or principal use, it is the duty of the importer to demonstrate that the goods were meant or intended to be used solely or principally in an ADPS. When the very description of a particular Tariff Item lays emphasis on the sole or principal use of the goods in question, the Tribunal could not have said that the Revenue authorities were bound to establish that the goods were not compatible with ADPS, so as to fall under the residuary classification. 22. As we have pointed out earlier, we are not sitting in appeal over the judgment of CESTAT dated 01.09.2010. The revenue has chosen to accept the said decision and hence it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 were exactly the same as the specifications of the projectors imported during the period from 2011 to 2016. Otherwise the petitioner will not be eligible to plead finality to the order of CESTAT. The order of CESTAT dated 01.09.2010 has attained finality insofar as goods of the description covered by the bill of entry dated 24.09.2007. 2. The second distinguishing feature is that in the first round of litigation, the Tribunal recorded a categorical finding that the revenue failed to produce evidence with regard to the technological features. In other words, the decision of the CESTAT in the first round of litigation was purportedly due to the failure of the department to produce evidence, but now the department has taken note of the specifications provided by the Indian counterparts of the manufacturers themselves, through statements recorded from the representatives of the Hitachi and Panasonic. Therefore, it is not possible for us to accept the contention that all future imports of all types of projectors by the petitioner are protected by the findings recorded by the CESTAT in its order dated 01.09.2010. 24. We must keep in mind the essential difference between a generic te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turned in the earlier case are clearly not applicable in the present case for example, it was found by the Honble CESTAT in that case (para 8.4) that it is also undisputed that the said projectors have to be used in conjunction with ADPS, whereas in the case before me the notices have themselves admitted otherwise as can be seen from para 7(xiv) hereinbefore where it is mentioned that in reply to the question, Does not the provision of various input terminals in the projectors as discussed above an affirmation that they can be used independently without the ADPS?, Shri Jain replied as yes, they can be used independently without the ADPS. It is further seen from para 8.4 of the Honble CESTATs Order in the earlier case that the revenue authorities have not adduced any evidence contrary to the findings of both the lower authorities (which were that the goods imported would be and can be used in conjunction with ADPS ONLY. This finding also is clearly not applicable in the case before me, as here there is ample evidence in the form of trade opinion and practice in favour of CTH 85286900. 37.4 Thus, clearly, the earlier decision by the Honble CESTAT in the assessees case is distinguis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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