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TMI Blog2021 (11) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... s-declared, the officers opened and examined the goods and found them to be LED strands of 50 each but without connectors and adapters. It was felt that import of the goods is prohibited as per the Electronics and Information technology goods (Requirements of Compulsory Registration) Order, 2012, CRO issued by the Ministry of Electronics and Information Technology, Meity issued vide S.O. 2375 (E) dated 7th September 2012 as amended S.O. 2742(E). dated 17 August 2017 as the imported goods did not meet the requirement of compulsory registration as per the CRO. Therefore, it was also felt that the imported goods were liable for confiscation under section 111(d) and (m) of the Customs Act and the respondent was liable to penalty under section 112. Accordingly an SCN was issued to the respondent and after following due process, the learned adjudicating authority passed the order in original dated 13 June 2019 as follows: " (i) I reject the claimed classification 85411000 of imported goods i.e. 'LED LIGHTING CHAINS' covered under bills of entry no. 8341684 dated 05.10.2018 and 8104330 dated 18.09.2018 and order to classify same under 94053000 under Section 17(4) of the Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting diodes (LED), - Transistors, other than photo sensitive transistors: 8541 21 00 -- With a dissipation rate of less than 1 W 85412900 -- Other 854130 - Thyristors, diacs and triacs, other than photosensitive devices 8541 30 10 --- Thyristors 8541 30 90 --- Other 8541 40 - Photosensitive semi-conductor devices, including photo voltaic cells whether or not assembled in modules or made up into panels; light-emitting diodes (LED) --- Photocells : 8541 40 11 ---- Solar cells whether or not assembled in - modules or panels 8541 40 19 ---- Other 8541 40 20 --- Light emitting diodes (electro-luminescent) - 8541 40 90 --- Other 8541 50 00 - Other semi-conductors devices 8541 00 - Mounted piezo-electric crystals 85419000 - Parts 9405 LAMPS AND LIGHTING FITTINGS INCLUDING SEARCHLIGHTS AND SPOTLIGHTS AND PARTS THEREOF, NOT ELSEWHERE SPECIFIED OR INCLUDED; ILLUMINATED SIGNS, ILLUMINATED NAME-PLATES AND THE LIKE, HAVING A PERMANENTLY FIXED LIGHT SOURCE, AND PARTS THEREOF NOT ELSEWHERE SPECIFIED OR INCLUDED 9405 10 - Chandeliers and other electric ceiling or wall lighting fittings, excluding those of a kind used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Customs Tariff Heading 94.05 covers only lamps and light fittings not elsewhere specified or included. He observed "Though there is a specific heading for different types of lamps in Chapter 85 ((85.39), there is no specific heading for lighting fittings in Chapter 85. This factual aspect conclusively suggests that lighting fittings of Chapter 85 as specified in the excluding note 1(f) of Chapter 94 including the lighting fittings of LED." 9. We have considered the arguments on both sides. We find it strange that having concluded that there is no heading for light fittings of LED under Chapter 85, the learned Commissioner (Appeals) concludes that they are excluded from Chapter 94 by virtue of Chapter note 1(f) which states that lighting fittings covered by Chapter 85 are excluded from Chapter 94. If the lighting fittings in question are not covered by Chapter 85, evidently, they are not excluded by virtue of Chapter note 1(f) of Chapter 94. Having come to this contradictory conclusion, the learned Commissioner (Appeals) held that the lower authority should not have applied Rule 2(a) because Rule 1 provides an answer. As is evident from the learned Commissioner (Appeals) findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. However, relevant confiscation provisions have to be examined. Section 111 reads as follows: SECTION 111. Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable to confiscation: - (a) .......... (d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; ............. (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 77 in respect thereof, or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54;........ 14. The original authority held that the goods are liable for confiscation [under section 111(d)] because they have been imported in violation of the CRO published by S.O. 2375 (E) dated 7th September 2012 which reads as follows: In exercise of the powers conferred under Section 10(1)(p) of the Burea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch inspection and take such samples of any material or substance as may be necessary to see whether any article or process in relation to which the Standard Mark has been used conforms to the Indian Standard or whether the Standard Mark has been improperly used in relation to any article or process with or without a licence; g) seek recognition of the Bureau and of the Indian Standards outside India on such terms and conditions as may be mutually agreed upon by the Bureau with any corresponding institution or organisation in any country; (h) establish, maintain and recognise laboratories for the purposes of standardisation and quality control and for such other purposes as may be prescribed; (i) undertake research for the formulation of Indian Standards in the interests of consumers and manufacturers; (j) recognise any institution in India or outside which is engaged in the standardisation of any article or process or the improvement of the quality of any article or process; (k) provide services to manufacturers and consumers of articles or processes on such terms and conditions as may be mutually agreed upon; (l) appoint agents in India or outside India for the inspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bureau. 16. From the above, it is evident that Section 10 deals with the functions of the Bureau of Indian Standards and clause (p) mandates it to perform any other functions as may be prescribed. Similarly, Rule 13 deals with the functions of the bureau. Neither Section 10 nor Rule 13 authorise the imposition of any controls over imports as has been done in the CRO 2012. In fact, neither the Bureau of Indian Standards Act, 1986 itself nor the Bureau of Indian Standard Rules, 1987 have any provision to regulate imports or to impose restrictions on imports. Therefore, it is doubtful whether any restrictions on imports imposed under the CRO issued under the BIS Act, 1986 can be considered as "restriction on imports under any other law for the time being in force." Section 111(d) must be read with the CRO read with Section 10 (1) (p) of the BIS Act and Rule 13 (fa) of the BIS Rules and neither the section nor the Rule nor the parent Act provide for restricting imports or laying down standards for imports. The CRO imposed restrictions not under the law but beyond it. Be that as it may, since neither side argued this point, we are not deciding this case based on this legal position. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of the goods imported, quantity, etc. which have to be correctly declared by the importer. The officer cannot change the declaration by the importer but he may find that the declaration was wrong (say, 1000 pieces were imported and not 800 as declared) and reassess duty accordingly and also take action for mis-declaration. The Bill of Entry also contains certain information such as Customs tariff heading and exemption notifications, which reflect the importer's self-assessment which, unlike declarations, can be changed by the officer. Wrong self-assessment is not the same as wrong declarations. Under Section 111(m), goods which do not correspond to the entry made under section 46 are liable for confiscation and not goods which are wrongly self-assessed to duty although self-assessment under section 17 is also done through the process of filing the Bill of Entry. Any column in the Bill of Entry which can be modified by the officer through re-assessment under section 17 is self-assessment by the importer. Whatever cannot be modified by the officer is a declaration by the importer under Section 46. The self-assessment is the importer's opinion which is subject to re-assessment by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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