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TMI Blog2021 (2) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... g equipment to merit classification under heading 84253100 - When both authorities have determined the essential character of the impugned goods as Lighting Fixture, then the classification as determined by them under heading 94054090 cannot be faulted with. Whether the goods are required to be compulsorily registered with BIS, in view of the provision of the Electronics and IT Goods (Requirements for Compulsory Registration) Order, 2012? - HELD THAT:- From the Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012, it is quite evident that the said order is applicable in respect of the Goods, as defined and specified in the schedule. Further the goods should be conformity with specified Indian Standard as per the schedule. Both the authorities below have failed to specify the Indian Standard as per the Schedule, to which these imported goods, i.e. LED Winches should have been in conformity before proceeding to hold them to be imported in contravention of the provisions of Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012. In absence of any determination of the Indian Standard, which would be applicable in respect of these goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al No 1398/2019 filed by M/s Star Dimension (I) Pvt Ltd. is rejected being devoid of merit." 2.1 Appellant had filed Bill of Entry No 4777113 dated 05.09.2019, for the clearance of the goods imported by them namely Winches (stage Lighting Equipment) and LED Balls of different sizes, having declared value of ₹ 21,19,307/- and ₹ 1,73.398/-. They claimed the classification of winches under Custom Tariff Heading 84253100 and those of LED Ball under 85395000. 2.2 On examination of the goods, Docks officer, found that winches are to be specifically used in kinetic lights with sole function as stage lighting equipment. Thus the goods were correctly classifiable under the heading 94054090 attracting Custom Duty of (BCD-20%+SCW-10%+IGST-12%) against (BCD-7.5%+SCW-10%+IGST-18%) as claimed by the appellant. Thus the matter was referred by the dock officers to the group for determination of the correct classification and applicable duty. 2.3 After consideration of the submissions made by the Appellant, Assistant Commissioner vide his order in original held as follows: "25. In view of the above, I pass the following order: i) I order for rejection of classification of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raja Bros [(1994) Supp 3 SCC 122], Delhi Cloth and General Mills Co Ltd [(1980) 4 SCC 71] has held that common parlance or trade parlance test to be basis for the determination of classification. He relies upon several other decisions of the various authorities expounding the same principle. * Since Winch is separate entity which is not covered under heading "LED driver and MPCB" of 94054090, it will get classified under Heading 84253100. * Even by application of General Notes for Parts to Section XVI these goods will get classified under heading 84253100 only. * Further in terms of the law laid down in the following decisions also the imported goods will get classified under the heading 84253100 * Simplex Mills Co. Ltd [2005 (181) ELT 0345 (SC)] * Belmarks Pvt ltd {2003 (158) ELT 295 (T-Del)] * Hitachi Home & Life Solution Ltd [2012 (285) ELT 504 (T-Mum)] * Singhla Sales Corporation Pvt Ltd {2002 (141) ELT 806 (T-Del)] * M P Dyechen Industries {2002 (139) ELT 656 (T-Del)] * Burden is on the department to prove that goods get classified in the particular heading * Hindustan Lever Ltd {2015 (323) ELT 209 (SC)] * HPL Chemical Ltd [2006 (107) ELT 324 (SC)] * Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of argument of appeals. In the matter the following questions have been raised for our determination. (i) Correct Classification of the imported good under the heading 84253100 or 94054090? (ii) Whether the goods are required to be compulsorily registered with BIS, in view of the provision of the Electronics and IT Goods (Requirements for Compulsory Registration) Order, 2012? (iii) Goods liable for confiscation and penalty on the importer justified? Correct Classification of the imported good under the heading 84253100 or 94054090? 4.2 Commissioner appeal has in para 8 of his order referred to the Catalogue of the product and observed as follows: "8. The appellant along with the appeal has submitted Kinetic Lighting User Manual. From careful perusal of the same, it is evident this LED Winch is the main equipment of the whole Kinetic Lighting System. The other parts/accessories which are used in the Kinetic Lighting System are LED Ball, Power Cable, Signal Cable, Connecting Cable, Safety Cable and Clamp. Further, there is a clear warning in the manual that "Run ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs simple lifting or handling equipment. The provisions of Explanatory Note to heading 84.26 apply, mutatis mutandis, to the equipment of this heading insofar as they concern self propelled and other "mobile" machines, multifunction machines and lifting, loading, handling, etc., machines intended for incorporation in other machines or for mounting on transport vehicles or vessels of Section XVII. However, if a winch is the normal working tool of a tractor, the complete machine (tractor and winch) is classifiable in heading 87.01. The heading covers : 1. PULLEY TACKLE AND HOISTS OTHER THAN SKIP HOISTS (II) WINCHES AND CAPSTANS Winches consist of hand-operated or power-driven horizontal ratchet drums around which the cable is wound. Capstans are similar, but the drum is vertical. This group includes: (1) Marine winches and capstans for operating cargo lifting gear, raising anchor, maneuvering the steering gear, hauling in tow lines, fishing nets, dredging cabies, etc. The power unit is often built into those machines as an integral whole. (2) Winches for tractors, etc. (3) Pit-head winding gear, consisting essentially of a large power-driven winch. (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veen Kumar E.O Docks, Indian Customs, JNCH, inspected the following Samples "Winch (Stage Lighting Equipment)" at Sea Bird CFS, JNCH, Nhava Sheva on 10/10/2019. Purpose of this inspection was to verify, assess and give opinion on the samples inspected on following points Viz: a) To inspect & appraise the veracity of the Samples inspected in the 'as is where is condition': On Physical & Visual verifications and examinations of the Samples inspected the following details were noticed. S No Description CE's Remark 1 Winch (Stage Lighting Equipment) * DMX Winch. * Used in stage lighting. * with integrated electronic controller/ control gear. CE's Comments / Opinions: i. The Sample winch shown were inspected in as is where is condition. ii. The Winch is having Star Dimensions marked on it, In the front Panel it has LCD Display for menu selection, DMX IN & Out Socket, Power Switch, USB for update, Fuse & Power In and Out Socket iii. The sample winch was opened and checked for various aspects. iv. The sample was found to have an integrated controller / control gear for controlling both the motor used f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e handling, it cannot be classified under Heading 84.22. ……." 4.7 In case of R C Projects & Systems Ltd [2005 (183) ELT 319 (T-Bang)] again reiterating the same principles following was held: "The contention of the appellants is that the item is required to be considered as parts of the machinery and draw reference to three judgments of the Tribunal. On our consideration, we find that in the case of CCE v. Conveyor Equipments Pvt. Ltd. [2001 (127) E.L.T. 478], the item Conveyor and material Handling equipments was cleared in CKD condition on account of its huge size, therefore the appellants contention that the entire system is to be considered as an individual item as it satisfies the description of sub-heading 8425.00 as Conveyor and material handling equipments was accepted. This citation is clearly distinguishable. So also in the case of CCE v. B.H.P. Engineers [2000 (119) E.L.T. 599 (T)], the goods cleared were parts of shipments of the conveyor for the purposes of convenience of transportation and held the same to be not as parts of Conveyor and hence the Revenue appeal was rejected. This judgment is also distinguishable. In the case of CCE v. Servall Engine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uipment to merit classification under heading 84253100. 4.9 Heading 94054090 of reads as under- 9405 LAMPS AND LIGHTING FITTINGS INCLUDING SEARCHLIGHTS AND SPOTLIGHTS AND PARTS THEREOF, NOT ELSEWHERE SPECIFIED OR INCLUDED; …. 9405 40 - Other electric lamps and lighting fittings : 9405 40 10 --- Searchlights and sportlights 9405 40 90 --- Other When both authorities have determined the essential character of the impugned goods as Lighting Fixture, then the classification as determined by them under heading 94054090 cannot be faulted with. Whether the goods are required to be compulsorily registered with BIS, in view of the provision of the Electronics and IT Goods (Requirements for Compulsory Registration) Order, 2012 4.9 Both Assistant Commissioner and Commissioner (Appeal) have found that the goods have been imported in contravention of the provisions of Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012. Assistant Commissioner has in para 19, of his order recorded as follows: "19 On perusal of the sample and the catalogue, I find that the subject goods i.e. Winches are actually Winch LED having fast processor and hardware that prog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y goods specified in the column (2) of the Schedule; e. "Schedule" means schedule annexed to this order; g. "Specified Standard" in relation Electronic and Information Technology goods means the Indian Standard as specified in the column (3) of the Schedule; 3. Prohibition regarding manufacture, storage, sale and distribution etc of goods- (1) No person shall by himself or through any person on this behalf manufacture or store for sale, import, sell or distribute Goods which do not confirm to the Specified Standard and do not bear the words "Self declaration -confirming to IS (Relevant Standard mentioned in column (3) of the Schedule) on the Goods after obtaining Registration from the Bureau: Provided that nothing in this order shall apply in relation to manufacture of Goods for exports. (2) The sub standard or defective Goods which do not confirm to the Specified Standard mentioned in column (3) of the Schedule shall be deformed beyond use by the manufacturer and disposed of as scrap. The SCHEDULE annexed, to the Order has been amended from time and as per the information available on website of Bureau of Indian Standard, (https://www.crsbis.in/BIS/products.do), foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10322 (Part 5/Section 7) : 2013 37 LED Luminaries For Emergency Lighting IS 10322 (Part 5/Section 8) : 2013 38 UPS/Inverters Of Rating <= 10kva IS 16242 (Part 1) : 2014 39 Plasma/ LCD/LED Television of Screen Size Up-To 32 IS 616 : 2010 40 Visual Display Units, Video Monitors Of Screen Size Upto 32 IS 13252 (Part 1) : 2010 41 CCTV Cameras/CCTV Recorders IS 13252 (Part 1) : 2010 42 Adapters For Household And Similar Electrical Appliances IS 302 (Part 1) : 2008 43 USB Driven Barcode Readers, Barcode Scanners, Iris Scanners, Optical Fingerprint Scanners IS 13252 (Part 1) : 2010 44 Smart Watches IS 13252 (Part 1) : 2010 45 Crystalline Silicon Terrestrial IS 14286 : 2010/ IEC Photovoltaic (PV) Modules (Si Wafer Based) 61215 : 2005, IS/IEC 61730 (Part 1) : 2004 & IS/IEC 61730 (Part 2) : 2004 46 Thin-Film Terrestrial Photovoltaic (PV) Modules (A-SI, CIGS And CDTE) IS 16077 : 2013/ IEC 61646 : 2008, IS/IEC 61730 (Part 1) : 2004 & IS/IEC 61730 (Part 2) : 2004 47 Power Invertors For Use In Photovoltaic Power System IS 16221 (Part 2) : 2015 48 Utility-Interconnected Photovoltaic Inverters IS 16169 : 2014 4.13 From the Electronics and IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 771 in respect thereof, or in case of goods under transshipment, with the declaration for transshipment referred to in the proviso to sub section (1) of section 54; 23. From the above, it is seen that importer has not only misclassified the impugned goods intentionally i.e. 110 pcs of Winches under chapter 84253100 with lower duty structure with sole purpose to evade payment of legitimate Customs duty classifiable under CTH 94054090 with higher duty structure of (20% + 10% + 12%) therefore same are found to be noncompliance of BIS which is mandatory, hence restricted to import. The importer is being attempted to clear the prohibited goods, without BIS Certification." 4.15 We agree to the submission made by the appellant that time and again it has been held by various authorities that mere misclassification of goods, is not misdeclaration for which the goods can be held liable for confiscation under Section 111 (m) of the Customs Act, 1962. However we find that the Assistant Commissioner has for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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