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TMI Blog2018 (8) TMI 1583X X X X Extracts X X X X X X X X Extracts X X X X ..... 21.5 LED monitor type GL2250HM and BENQ 24 LED monitor type GL2450HM, as per Bill of Entry No.5523466, dated 21/12/2011. The appellant has classified the three types of monitors under CTH 85285100. This heading covers monitors other than cathode ray tube monitors of a kind solely or principally used in an automatic data processing machine (ADP). The goods falling under this heading were exempted from levy of BCD. 3. The customs department wanted to classify the goods, under CTH 85285900, i.e., monitors others than those used for ADP. As the goods were urgently needed, the appellant paid the duty, as assessed by the Group, under protest. The appellant, as per letter, dated 10/1/2012, explained to the Deputy Commissioner/Assistant Commissioner, Group 5 A, that the monitors were to be used for ADP only. It was stated that the connectivity of monitors with computer was through primary input ports D-sub, HDM 1 ports were provided in the computers, for transfer of encrypted use, for compressed digital high definition data. This was due to advanced technology. These monitors are used in large frame computers, graphical printer. 4. The Assistant Commissioner of Customs, Group 5 A pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t later contend that their address was changed. Moreover, the address had not changed after 30/7/2014 and before dispatch of the order by the department. These being the facts, we do not find sufficient cause to condone the delay. The miscellaneous application for condonation of delay is dismissed. Consequently, the appeal also stands dismissed. 7. Being aggrieved by the refusal to condone delay, instant Civil Miscellaneous Appeal is filed, on the following substantial questions of law:- 1. Whether the Hon'ble Tribunal in the present facts and circumstances has erred in dismissing the appeal as barred by limitation though sufficient cause for the delay was explained by the appellant? 2. Whether the Hon'ble Tribunal has erred in depriving the substantive right of the appellant to file an appeal on mere ground there is violation in procedure? 3. Whether the Hon'ble Tribunal had erred in refusing to condone the delay when the issue involved was that of classification of goods which had direct bearing on the frequent imports made by the appellant of identical and similar goods and when the appellant had not deliberately slept over their rights 8. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling under 852851 from whole of customs duty and the same is assessed under the same CTH. However, at the time of examination of the goods at docks, t he docks officer in his examination report stated that the monitors can be simultaneously used with DVD and game console along with ADP machine and accordingly it appeared that the goods imported is not solely or principally used with ADP machine and hence the goods is physically examined by the docks staff and found that the monitor has three ports for the ADP machine, second is HDMI port and third for DVD port and hence it is concluded by Docks staff that the imported monitor can be used with DVD player. However, importer vide letter dated 14/2/2014 has stated that as per the catalogue and service manual of the product covered by the Bill of Entry there are three ports one is VGA (i.e., computer port), DVD port and HDMI port. In this regard, kind attention is drawn towards Boards Circular No.33/2007-Cus dated 10/9/2007 which clearly makes a distinction between Computer Monitor and TV/Video Monitors. Accordingly, on perusal of the catalogue and product service manual, it is evident that the Technical Specification given ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Q attended for personal hearing in Joint Commissioner chambers at 12.30 p.m. The party submitted the written submissions even No.dated 6/3/2014 placed opposite for kind perusal. 2 (i). As per importer written submissions HDMI connection option given in the monitor is to make the HDMI connectivity with the computer, where the HDMI port is given in the mother Board of the computer. This connectivity to the Mother Board of the computer is given in the user manual of this monitor. At the time of doing art-work, design, animation graphics work in the computer software, we required precise color and sharp image of full HD resolution to be shown in the monitor. For this the data has to be transferred at very high speed digitally from the computer to monitor, and the DBMI connectivity is doing this function. That is why, the present mother boards are coming with the HDMI ports. For this requirement, the monitors also has to come with the HDMI connectivity. All the TV/Video monitors, are having composite video and component video connectivity ports to connect with the video source. The imported monitors do not have these ports. So, the imported monitors are manufactured to be usable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incipally for ADP, AO, Docks' objection may be overruled. File submitted for order please. Sd/- Manoj Kumar Asst.Commr 7/3/2014 JC/Gr.VAB Notes above refer. In view of above, goods under question do not appear to be classifiable UCTH 85285900. May like to issue instruction to Docks Officer accordingly. Sd/- 7.3.2014 Rakesh Kumar Agarwal Sd/- 7.3.2014 ADC/Docks 13. Sufficiency of cause is certainly a matter to be considered while exercising discretion. At the same time, Courts/Tribunals are bound to consider, as to whether length of delay or reasons assigned, if not accepted, would cause miscarriage of justice. At this juncture, it is worthwhile to consider few decisions of the Hon'ble Supreme Court. 14. In Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, the Hon'ble Supreme Court has broadly culled out the principles of law to be considered in the matter of condonation and it is suffice to extract paragraph No.21 from Esha Bhattacharjee's case, 21. From the aforesaid authorities the principles that can broadly be culled out are; 21.1. (i) There should be a liberal, pragmatic, justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 15. Subsequently, after considering the Hon'ble Division Bench judgment of this Court in Tamilnadu Mercantile Bank Ltd., Vs. Appellate Authority, reported in (1990) 1 LLN 457 and decision of the Supreme Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, in H.Dohil Constructions Company Private Limted V. Nahar Exports Limited and Another, reported in 2015(1) Supreme Court cases 680, Hon'ble Supreme Court, at paragraph Nos.23 and 24, held as follows: 23. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee [Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649], where several principles were culled out to be kept in Principles (iv), (v), (viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCCpp.658-59) 21.4(iv) No presumption can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the Respondents not deserving any indulgence by the Court in the matter of condonation of delay. The Respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the Respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered. 16. It is also useful to extract paragraph Nos.14 to 17 of the judgment in Tamilnadu Mercantile Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X
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