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TMI Blog2022 (9) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. Projectors Imported by M/s. Benq India Pvt. Ltd. under the Bills of Entry, as detailed in the Annexures-A, B,C,D,E,F,and G of the show cause notice are ordered to be re-assessed by classifying them under CTH 85286900; (ii) The seized goods mentioned in Table-III of the show cause notice, having total value of Rs. 1,08,52,755/- (Rupees One Crore Eight Lakh Fifty Three Thousand Seven Hundred Fifty Five Only) are hereby confiscated under the provisions of Section 111 (m) of the Customs Act, 1962. However, I give an option to M/s. BenQ India Pvt. Ltd. to redeem the said goods upon payment of Redemption Fine Commissioneratewise as per chart given below under the provisions of Section 125 of the Customs Act, 1962: S. No. Name of Commissionerate Redemption Fine (in Rs) 1. Air Cargo Complex, Chennai 45,000/- 2 Sea Port, Chennai 90,000/- 3. Air Cargo Complex, Mumbai 5,000/- 4. Air Cargo Complex, Delhi 9,00,000/- Total 10,40,000/- (iii) I hold the impugned goods imported in the past by M/s. BenQ India Pvt. Ltd. under the Bills of Entry, as detailed in the Annexures- A, B, C, D, E, F and G of the show cause notice with a total assessable value of Rs.111,42, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Pvt. Ltd. under section 112 (a) of the Customs Act, 1962 in terms of proviso 5 of section 114A of the Customs Act, 1962. (viii) I however, do not impose penalty upon M/s. BenQ India Pvt. Ltd. under Section 114AA of the Customs Act, 1962. 2.2 I impose penalty of As. 11,00,000/ - (Rupees Eleven Lakh only) under section 112(a) of the Customs Act, 1962 upon each of these i.e., (i) Shri Rajeev Singh, Managing Director, M/s BenQ India Pvt. Ltd. (ii) Shri Vijay Sharma, Business Manager (Projectors) of M/s. BenQ India Pvt. Ltd, (iii) Shri Hitesh Kumar, Manager (Supply Chain) of M/s. BenQ India Pvt. Ltd, (iv) Shri R. Ravichandran, Managing Director of M/s. Blessings Cargo Care Pvt. Ltd, and (v) M/s. Blessings Cargo Care Pvt. Ltd. as indicated portwise in the table given below: S. No. Port of import Penalty under section 112 (a) (in Rs) 1. ACC, Mumbai 5000/- 2. ACC, Chennai 85,000/- 3. Chennai Sea Port 5,00,000/- 4. ACC, Delhi 4,50,000/- 5. Nhava Sheva 25,000/- 6. ICD Patparganj 5,000/- 7. ICD Tughalakabad 30,000/- Total 11,00,000/- I however, do not impose any penalty upon them under section 114AA of the Customs Act, 1962. " (emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is given below: Sl. No. Particulars Data Projector Video Projector 1. Native Aspect Ratio 4:3 or 16:10 16:9 2. Brightness (Luminosity) More than 2500 lumens Less than 2500 lumens 3. Native Resolution 1024x768 1280x800 1900x1200 1920x1080 3480x2160 4096x2160 4. Color Wheel RGB RGBCYM RGBW RGBRGB 7. The appellant claims that the goods imported by it satisfy the aforesaid specifications/characteristics of the data projectors and, therefore, exemption from payment of BCD was rightly claimed. 8. The records indicate that the Directorate of Revenue Intelligence [DRI] initiated an investigation into the imports of data projectors by the appellant in the year 2017. The DRI formed a view that the goods were 'multimedia projectors', capable of being connected to multiple devices/audio-video sources and, therefore, were incorrectly classified by the appellant under CTI 8528 61 00/8528 62 00 in order to avail the benefit of the exemption notification. 9. Accordingly, a show cause notice dated 29.10.2018 was issued to the appellant alleging incorrect classification under CTI 8528 61 00/8528 62 00 and wrongful availment of exemption under the exemption notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This still remains to be the principal function of the impugned goods. The presence of such ports is only to ensure their use with laptops and ADPS. Consequently, presence of such ports makes them capable of being connected to ADPS. Therefore, even post 31.12.2016, the goods imported by the appellant are correctly classifiable under CTI 852862 00 and the legal portion classified by the Courts will continue to apply to the projectors imported w.e.f 01.01.2017; iv. For the period prior to 01.01.2017, all goods falling under CTSH 8528 61 were unconditionally exempt from payment of BCD as per the exemption notification Post 01.01.2017, serial no. 17 of the notification exempts all goods falling under CTSH 8528 62 if they are of a kind solely or principally used in an Automatic Data Processing System of Heading 8471. The goods imported by the appellant satisfy the description of the exemption notification for both the periods and therefore, eligible for exemption; v. It is a settled principle that while interpreting Tariff entries, due account has to be taken of the technological development or the evolution of products over a period a time; vi. The extended period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % - 17. The exemption notification dated March 01, 2005 is as follows: Exemption to goods of specific heading, from Customs Duty (ITA Bound)- In exercise of the powers conferred by sub-section (1) of the 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 coloumn (3) of the Table below and failing 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 Description (1) (2) (3) - - - 17 8528 41 or 8528 51 or 8528 61 All goods 18. It needs to be stated that an amendment was made in the Tariff Act and w.e.f. 01.01.2017, the relevant entries are as follows:- Tariff Items Description of goods Unit Rate of Duty Standard Preferential Areas (1) (2) (3) (4) (5) 8528 Monitors and projectors, not incorpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct test is to find out whether the specification and features are designed in such a way that they are generally or primarily meant for use with ADPS. 23. A Division Bench of the Tribunal in Sony India, after referring to the earlier Division Bench decisions of the Tribunal in Acer India Pvt. Ltd. v. Commissioner of Customs [2009 (11) TMI 931- CESTAT Ahmedabad], Aveco Viscomm Pvt. Ltd. v. Commissioner of Customs & Central Excise, Hyderabad- II [2011 (263) E.L.T. 420 (Tri.-Bang.)], Commissioner of Customs (I) ACC, Mumbai v. Vardhaman Technology P. Ltd. [2014 (301) E.L.T. 427 (Tri.- Mumbai)], held that the colour data projectors imported by the appellant would be classifiable under CTI 8528 61 00. The Division Bench also examined whether the colour data projectors falling under CTI 8528 61 00 were covered by the exemption notification and in this context the Division Bench observed as follows: "34. A perusal of the aforesaid Exemption Notification clearly indicates that the description of goods specified in Column (3) when imported into India would be exempted from the whole of the duty of Customs leviable thereon. Thus, once the goods are covered by the description in Column ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the aforesaid decision of the Tribunal in Aveco Viscomm, that the data projectors would be classified under CTI 8528 61 00. The relevant portion of the decision is reproduced below: "6. We have carefully considered the submission and perused the record. The Department has contended that only those kinds of projectors can be classified under CTH 8528 61 00 which are solely or principally for use in an automatic data processing system of heading 8471. Since these projectors are having additional feature like composite Video Port, S-Video Port, HDMI, RCA Audio Stereo besides VGA, DVI, USB ports, they cannot be said to be meant for use solely or principally in an automatic data processing system of Heading 8471. The only dispute is that they are having additional features which make them not classifiable under 8528 61 00. We find from the records of the case that the product combines the computing power of a computer 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 monito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n could not have been invoked as was observed by the Supreme Court in Commissioner of Customs (Imports) v/s Reliance Industries Ltd. [2015 (325) E.L.T. 223 (S.C.)]. The relevant portion of the judgment is reproduced below: " 5. In this behalf, it would be pertinent to mention that the issue of classification, at the relevant time when the goods in question were imported in June, 1994, had been decided by the Tribunal in two judgments, i.e., Roto Inks Private Limited v. Collector of Customs [1990 (47) E.L.T. 398] and Tata Consultancy Services v. Collector of Customs [1991 (53) E.L.T. 454] classifying these very articles under tariff item 49.01. Thus, when the declaration was filed by the respondent, in view of the aforesaid position in law that was prevailing at that time, it was a bona fide declaration and cannot be treated as mis-declaration." 30. Thus, when there is no mis-declaration, penalty under section 114A of the Customs Act could also not have been imposed. 31. The Department has filed appeals as penalties under section 114AA of the Customs Act have not been imposed. As the appellant has correctly availed the benefit of the exemption notification, the appeals filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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