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TMI Blog2020 (3) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs duty if the product is covered by the description specified in Column (3). All goods falling under 8528 61 are specified in Column (3) of the Table. It is only when there is any ambiguity in the Exemption Notification, that the Notification is required to be interpreted in favour of the Revenue - There is no ambiguity in the Exemption Notification dated 1st March, 2005 and indeed none has been pointed out by the Commissioner in the impugned order. Whether the extended period of limitation under Section 28(4) of the Customs Act could have been invoked in the present case? - HELD THAT:- It is not necessary to examine the contention raised by the Learned Counsel for the Appellant about the invocation of the extended period of limitation. Whether the Commissioner was justified in refraining from imposing penalty? - HELD THAT:- The reason given by the Commissioner is that the penal provisions under the relevant sections of the Customs Act were not invoked in the show cause notice - Revenue has not been able to place any portion of the show cause notice which calls upon Sony India to show cause why penalty should be imposed under particular sections of the Customs Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Customs and Central Excise, Hyderabad-II v. Aveco Viscomm Pvt. Ltd. [2011 (263) E.L.T. 420 (Tri. - Bang.)], and M/s. Acer India Pvt. Ltd. v. Commissioner of Customs, Ahmedabad [2009 (11) TMI 931-CESTAT, Ahmedabad], the Appellant submitted a letter dated 11 August, 2011 to the Deputy Commissioner of Customs, New Customs House, New Delhi intimating the change in classification of the product from 8528 69 00 to 8528 61 00. It is stated that on the basis of the aforesaid letter, the revised classification was accepted by the Assessing Officer after examining the first consignment imported under the new bill of entry dated 10 August, 2011. The Appellant, thereafter, constantly cleared all the subsequent consignments under this classification in 2012-2013 (the relevant period from 11 April, 2012 to 16 March, 2013) and availed exemption from payment of Basic Customs Duty under Notification dated 1 March, 2005. 5. The Appellant had also imported video projectors by classifying them under 8528 69 00 and paid the basic Customs Duty at the specified rate without claiming exemption. 6. In May, 2013, the colour data projectors imported by the Appellant were examined by the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8528 62 00 (the Heading number had changed in the meantime) under self-assessment, but the classification was being changed by the appraising officers to 8528 69 00 and, therefore, it was paying the basic Customs Duty under protest. It is for this reason that it had sought speaking orders on the representation but no orders were passed. 9. The Commissioner did not accept the contention advanced by the Appellant in response to the show cause notice and held that the colour data projectors imported by the Appellant would be classifiable under 8525 69 00. The Commissioner also did not accept the submissions made by the Appellant that the classification of the product under 8528 61 00 had been settled by the Supreme Court and the Tribunal in numerous decisions for the reason that they stood overruled and so not relevant or legally tenable , in view of the subsequent judgment of the Supreme Court in Commissioner of Customs (Import), Mumbai v. Dilip Kumar and Company [2018 (361) E.L.T. 577 (S.C.)]. The Commissioner, accordingly, denied the benefit of the Exemption Notification to the Appellant. The findings of the Commissioner are reproduced below : 5.4 In the instant case, it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Noticee stands overruled and as such cannot be given to and thus I hold that the judgments relied upon by the notice are not relevant and legally tenable in the instant case. 5.10 Further, I find that the Noticee has admitted in their reply to the Show Cause Notice under Para 3 of Factual Background that they were voluntarily classifying the subject imported Goods under CTH 8528 69 00 since beginning and were paying Customs Duty at full rate of duty and were not availing benefit of Exemption Notification No. 24/2005-Cus., dated 2-3-2005. 5.10.1 I find that Noticee in their reply has submitted that they started classifying their imported goods under CTH 8528 61 00 and availing benefit of said Exemption Notification 24/2005-Cus., dated 2-3-2005 on the basis of Judgments of Hon ble Supreme Court of India and CESTATs as mentioned in their reply to the Show Cause Notice viz. Hon ble Supreme Court of India judgment in the case of Commissioner of Customs v. Aveco Technologies Pvt. Ltd. through Managing Director 2018 (8) TMI 570, dated 6-8-2018 and Hon ble CESTAT judgment in the case of Commissioner of Customs Central Excise Hyderabad-II v. Aveco Viscom Pvt. Ltd., 2011 (263) E.L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t period. [emphasis supplied] 11. The Commissioner, however, refrained from imposing any penalty for the reason that the penal provisions under the relevant sections of the Customs Act had not been invoked in the show cause notice. It is against this part of the order of the Commissioner refraining from imposing any penalty, that the Department has filed an appeal. 12. Three issues, therefore, arise for consideration in the two appeals and they are as follows : (1) Whether the colour data projectors imported by Sony India are classifiable under 8528 61 00 as projectors of a kind solely or principally used in an ADP system of Heading 8471 or under 8528 69 00. (2) Whether the extended period of limitation under Section 28(4) of the Customs Act could have been invoked in the present case. (3) Whether the Commissioner was justified in refraining from imposing penalty. FIRST ISSUE 13. To appreciate the contentions advanced by Shri Laxmikumaran Learned Counsel appearing for the Appellant and Shri Sunil Kumar Learned Authorised Representative for the Department, it will be appropriate to refer to the relevant entries contained in Chapter 85 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. Projectors fulfilling such criteria will be restricted in their functionally and specifications such that they can work only with ADPS; (iii) Goods which are principally used with ADPS are those goods which are inherently capable of connecting with multiple devices, but, are designed primarily to be used with ADPS. That is, goods should have functionality and specifications that allow these devices to work optimally with ADPS. It also implies that the other uses of such projectors, that is, in non-ADPS environment are less satisfactory or less efficient; (iv) The impugned goods are used for education and business purposes which include making presentations in various forms. The presentation is not limited to figures and alphabets but also includes within the ambit audio visual representations of information; (v) The impugned goods have additional features of HDMI port, S-video port, etc. so that it can be in consonance and well updated with the requirements and demands of the customers in education and business space; (vi) However, the addition of multiple ports in the impugned goods does not take away the basic nature of the impugned goods which is to wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natory Note; (v) Thus, projectors which are capable of accepting a signal only from a central processing unit of an automatic data processing machine would fall under 8528 69 00. 16. We have considered the submissions advanced by Learned Counsel for the Appellant and the Learned Authorised Representative of the department. 17. The issue is about classification of colour data projectors imported by Sony India. According, to Sony India they would be classifiable under Heading 8528 61 00, while according to the Revenue they would fall under the Heading 8528 69 00. Heading 8528 61 00 is in relation to projectors of a kind solely or principally used in an automatic data processing system of Heading 8471. Heading 8528 69 00 is for reception apparatus for television, whether or not incorporating radio broadcast receivers or sound or video recording or reproducing apparatus. 18. The classification of colour data projectors has engaged the attention of various Benches of the Tribunal and it has been held that the colour data projectors have to be classified under Heading 8528 61 00. 19. In Acer India (P) Ltd., the issue before the Ahmedabad Bench of the Tribunal pertained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch video compatibility does not come in the way of the impugned goods being classified under SH 8528.61 so long as the principal use of all such projectors with laptop and desktop computer systems is not doubted and as the sub-heading covers both sole use as well as principal use . Looking at the features of the impugned data projectors imported by the Appellants, we have no doubt in our mind that the same merit classification under SH 852861 and automatically become entitled to exemption under Notification No. 24/2005 as the same exempts all goods under the said sub-heading. Hence, we set aside the impugned order and allow the 13 appeals. [emphasis supplied] 20. In Aveco Viscomm Pvt. Ltd., the issue again was whether the data projectors imported by the Appellant were to be classified under 8528 61 00 with benefit of Notification dated 1 March, 2005 or under 8528 69 00 as Others , wherein benefit of such exemption Notification was not available. The Tribunal held that the classification of the colour data projectors would be under Heading 8528 61 00 and the relevant portion of the decision of the Tribunal is as follows; 8.4 It is undisputed that the goods imported by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uter with large screen display provided by an inbuilt projection system to deliver powerful outcomes through the use of technology for large screen projection to a wider audience. The projection system cannot be used in isolation but replace the functionality of a monitor. The projectors merely having additional function cannot be a ground for classifying it other than 8528 61 00. This issue was before the Tribunal in the case of Aveco Viscomm Pvt. Ltd. (supra) and Celetronics Inda P. Ltd. (supra) wherein the cases were decided in favour of the importer/assessee. [emphasis supplied] 22. A Division Bench of the Tribunal in M/s. Casio India Co. Pvt. Limited v. Commissioner of Customs, New Delhi [2016 (12) TMI 379-CESTAT-New Delhi], after examining the literature on the subject concluded that the data projectors imported were projectors of a kind solely or principally used in ADP machines of heading 8471 and would fall under Heading 8528 61 00 with benefit of exemption Notification. The earlier decisions of the Tribunal on this issue were, accordingly, followed. 23. The same view was reiterated by the Tribunal in Aveco Technologies Pvt. Ltd. v. Commissioner of Customs, Hydra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... System of Nomenclature contained in Chapter 85. The relevant provisions, on which reliance was placed by Learned Authorised Representative of the Department, are reproduced below : 85.28 Monitors and projectors, not incorporating television reception apparatus; reception apparatus for television, whether or not incorporating radio-broadcast receivers or sound or video recording or reproducing apparatus. -------- -------- -------- - Projectors : 8528 61 -- Of a kind solely or principally used in an automatic data processing system of heading 8471 --------- --------- --------- (A) MONITORS OF A KIND SOLELY OR PRINCIPALLY USED IN AN AUTOMATIC DATA PROCESSING SYSTEM OF HEADING 84.71 This group includes Cathode Ray Tube and non-Cathode Ray Tube (e.g., flat panel screen) monitors which provide a gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the issue at hand. 32. What remains to be examined is whether the colour data projectors falling under 8528 61 00 are covered by the Exemption Notification, once the classification of the colour data projectors is found to be under 8528 61 00. 33. The General Exemption Notification dated 1st March, 2005 now needs to be examined and it is as follows : GENERAL EXEMPTION NO. 163 Exemption to goods of specific heading, from Customs Duty (ITA Bound). - In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the following goods of the description as specified in column (3) of the Table below and falling under the heading, sub-heading or tariff-item of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as specified in the corresponding entry in column (2) of the said Table when imported into India, from the whole of the duty of customs leviable thereon under the said First Schedule, namely :- Sr. No. Heading, sub-heading or tariff item Descri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt are based on the ratio of judgment of Supreme Court in Sun Export Corporation, Bombay v. Collector of Customs, Bombay [1997 (6) SCC 564 = 1997 (93) E.L.T. 641 (S.C.)]; (ii) In Sun Export, the Supreme Court observed that any ambiguity in a tax exemption provision or notification must be interpreted in favour of the assessee; (iii) The Constitution Bench of the Supreme Court in Dilip Kumar observed that an exemption notification should be interpreted strictly and when there is ambiguity in an exemption notification, the benefit of such ambiguity must be interpreted in favour of the Revenue; (iv) The Supreme Court in Dilip Kumar overruled its earlier decision in Sun Export. Thus, all the judgments of the Supreme Court and the decisions of the Tribunal relied upon stand overruled and are not relevant and legally tenable ; and (v) The Appellant is, therefore, not entitled to the benefit of the exemption notification. 37. The Constitution Bench of the Supreme Court in Dilip Kumar was constituted to examine what would be the interpretative rule to be applied while interpreting a tax exemption provision/notification when there is an ambiguity as to its applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments of the Supreme Court and the decisions of the Tribunal. The Commissioner should have realised that the Civil Appeals filed by the Department before the Supreme Court against the decisions of the Tribunal in Aveco Technology and M/s. Epson India had also been dismissed. The dismissal of the Civil Appeals by Supreme Court resulted in merger of the decisions of the Tribunal in the Order of the Supreme Court. If the Commissioner intended to distinguish the binding decisions, it was imperative for him to have really understood facts of the case before him as also the dispute in the binding judgments of the Supreme Court and the binding decisions of the Tribunal as also the law laid down by the Supreme Court in Dilip Kumar, which according to him had rendered the earlier judgments of the Supreme Court and the decisions of the Tribunal as not relevant and legally tenable . However, there is no discussion in the order passed by the Commissioner as to why the decision of the Supreme Court in Dilip Kumar would be applicable to the facts of the present case. Only the legal position explained by the Supreme Court in Dilip Kumar has been stated and, thereafter, a bald statement has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Supreme Court. The assessee filed a writ petition in the Bombay High Court to challenge the said order of the Assistant Collector. The High Court not only quashed the order passed by the Assistant Collector but also directed the Department to allocate the matter to a competent officer for passing a proper order. It is against this decision of the Bombay High Court that the Union of India preferred an Appeal before the Supreme Court. The Supreme Court observed as follows :- The High Court has, in our view, rightly criticized this conduct of the Assistant Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the orders of authorities higher to them in the appellate hierarchy. It cannot be too vehemently emphasized that it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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