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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 ..... ighting fittings falling under Chapter 85 and the learned commissioner finds that there is no heading for lighting fittings of LEDs in Chapter 85. Nature of the goods that are imported - HELD THAT:- Although they were declared as LEDs, on examination, they were found to be not individual LEDs but strands of 50 LEDs each. Such strands of LEDs are used for decoration, etc. but one needs to attach the adapters and connectors to the strings of LEDs. There were no adapters in the consignment and therefore, they were incomplete. Learned adjudicating authority has correctly applied Rule 2(a) to conclude that they were classifiable as Lighting sets of a kind used for Christmas trees 94053000. The classification of the goods by the Commissioner (Appeals) needs to be set aside and the classification by the original authority needs to be restored. Exemption notification no. 24/2005-Cus (S.No. 23) - HELD THAT:- Evidently, goods falling under heading 8541 are exempted and not goods falling under 94053000. Since it is held that the goods in question are classifiable under 94053000, the benefit of this exemption notification does not apply. Confiscation of goods - imposition of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : This appeal has been filed by the Revenue assailing Order in Appeal dated 22.01.2020, Impugned order whereby the learned Commissioner (Appeals) allowed the appeal filed by the importer and set aside the order in original dated 13.06.2019 passed by the Additional Commissioner of Customs (Port), Kolkata. 2. The facts of the case, after filtering out unnecessary details, are that the Respondent herein filed two Bills of Entry No. 8104330 dated 18.09.2018 and 8341648 dated 5.10.2018 declaring the imported goods as 12 mm Pixel LED and classified the goods under 85411000 and claimed the benefit of exemption notification no. 24/2005 (S.No. 23). Receiving information that the goods have been mis-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d if so, whether the option of redemption of the goods only for export given by the original authority under section 125 correct? d) Is the imposition of penalty under section 112 upon the respondent correct? 4. We proceed to decide the above issues. Classification of the impugned goods 5. The competing tariff entries are 85411000 and 9453000 of the Customs Tariff. These entries are as follows: 8541: DIODES, TRANSISTORS AND SIMILAR SEMI CONDUCTOR DEVICES; PHOTOSENSITIVE SEMI-CONDUCTOR DEVICES; INCLUDING PHOTO VOLTAIC CELLS, WHETHER OR NOT ASSEMBLED IN MODULES OR MADE UP INTO PANELS; LIGHT EMITTING DIODES; (LED); MOUNTED PIEZO-ELECTRIC CRYSTALS 8541 10 00 - Diodes, other than photosensitive or light emitting diodes (LED), - Transistors, other than photo sensitive transistors: 8541 21 00 -- With a dissipation rate of less than 1 W 85412900 -- Other 854130 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9405 40 Other electric lamps and lighting fittings : 9405 40 10 - Searchlights and spotlights 9405 40 90 - Other 9405 Non-electrical lamps and lighting fittings : 6. The case of the Revenue is that the customs tariff heading 85411000 covers diodes other than photosensitive and light emitting diodes (LED) . Therefore, the imported goods can never be classified under this head when the heading specifically excludes LEDs. It is also the case of the Revenue that what were imported were not merely LEDs but they were strands of 50 LEDs each and were effectively lighting sets of the kind used for Christmas trees although they were without connector and adapter. In other words, they are incomplete lighting sets. As per Rule 2(a) of the Rules of Interpretation, incomplete and unfinished articles must be classified as complete and finished articles. Rule 2(a) of the Rules of Interpretation reads as follows: Rule 2(a): Any reference in a heading to an arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n only excludes lighting fittings falling under Chapter 85 and the learned commissioner finds that there is no heading for lighting fittings of LEDs in Chapter 85. 10. We also find it unsustainable that the learned Commissioner (Appeals) holds that the imported goods are classifiable under 85411000 in paragraph 18 of the impugned order after reproducing this heading in paragraph 8 as follows: 85411000 Diodes , other than photosensitive or light emitting diodes (LED) Clearly photosensitive diodes and LEDs are excluded from this heading and therefore, learned Commissioner (Appeals) committed an error in classifying them under this heading. 11. Coming to the nature of the goods that are imported, although they were declared as LEDs, on examination, they were found to be not individual LEDs but strands of 50 LEDs each. Such strands of LEDs are used for decoration, etc. but one needs to attach the adapters and connectors to the strings of LEDs. There were no adapters in the consignment and therefore, they were incomplete. Learned adjudicating authority has correctly applied Rule 2(a) to conclude that they were classifiable as Lighting sets of a kind used for Christmas t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ureau of Indian Standards Act, 1986 (63 of 1986) and in pursuance of clause (fa) of Rule 13 of the Bureau of Indian Standards Rules, 1987, the Central Government, after consulting the Bureau of Indian Standards, makes the following order, namely:- 3. Prohibition regarding manufacture, storage, sale and distribution, etc. of goods- (1) No person shall, by himself or by any other person on his behalf, manufacture or store for sale, import, sell or distribute goods which do not conform to the specified standards and do not bear the words Self declaration- conforming to IS (Relevant Indian Standard mentioned in the column (3) of the Schedule) on such goods after obtaining registration from the Bureau. Provided that nothing in this order shall apply to manufacture of goods meant for export. (2) The substandard or defective goods that do not conform to the specified standard mentioned in column (3) of the Schedule shall be deformed beyond use by the manufacturer and disposed off as scrap. The schedule to the above order was expanded by S.O. 2742(E). dated 17 August 2017 including, inter alia, at S.No. 36 as follows: 36 LED Ligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and conditions as may be mutually agreed upon; (l) appoint agents in India or outside India for the inspection, testing and such other purposes as may be prescribed; (m) establish branches, offices or agencies in India or outside; (n) inspect any article or process, at such times and at such places as may be prescribed in relation to which the Standard Mark is used or which is required to conform to the Indian Standard by this Act or under any other law irrespective of whether such article or process is in India or is brought or intended to be brought into India from a place outside India; (o) co-ordinate activities of any manufacturer or association of manufacturers or consumers engaged in standardisation and in the improvement of the quality of any article or process or in the implementation of any quality control activities; (p) perform such other functions as may be prescribed. (2) The Bureau shall perform its functions under this section in accordance with, and subject to, such rules as may be made by the Central Government. Rule 13 of the Bureau of Indian Standards Rules 1987 13. Other Functions of the Bureau The Bureau under clause (p) of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw 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. 17. We find that S.No. 36 of the schedule to the CRO order dated 2012 as amended in 2017 places restrictions on strands of LED lights. What were imported in the present case are incomplete strands inasmuch as they do not have any adapters. Incomplete articles are to be classified as complete articles as per Rule 2(a) of the Rules of Interpretation for the Customs Tariff. However, these Rules of interpretation apply to the tariff and not to the restrictions on imports imposed supposedly under the BIS Act. In the absence of any explicit provision prohibiting the import of the impugned goods (which are incomplete LED light strands), we find that the import of the impugned goods is not prohibited and they cannot be confiscated under Section 111(d) of the Customs Act. 18. As far as Section 111(m) is concerned, any goods which do not correspond in respect of value or in any other particular with the entry made under this Act are liable for confiscation. The entry in question is the Bill of Entry filed under Section 46 of the Act. In addition to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the officer and further subject to appeals. The declaration by the importer in the Bill of Entry are factual aspects which must be correctly declared and failure to do so entails action under the Act and the officer cannot modify the importer s declaration. Wrong self-assessment is not mis-declaration by the importer. Similarly the officer is not liable if his re-assessment gets overturned on appeal nor is the appellate authority liable if his order gets overturned on further appeal. 20. In the present case, the importer declared the imported goods as LEDs and on examination they were found to be LEDs in strands of 50 each. The importer claimed a classification and consequentially the benefit of an exemption notification in its self-assessment while the officer re-assessing the goods classified them under a different heading and consequently found that the exemption notification was not available. The learned Commissioner (Appeals) agreed with the importer and we have, in this order, found that the decision of the Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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