9911796707
TMI Blog2023 (4) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... and, thereafter, to conformity with digital still image video camera describing the article to which the exemption may be allowed. It must be categorically stated, and contrary to the submissions made by Learnt Authorised Representative as well as references in the impugned order, that the technical specifications for limiting the eligibility of article for exemption had ceased to exist by the time the impugned imports were effected. Its continued inclusion in other notifications, not adduced to in the bills of entry, and in circulars elaborating such other notifications, or even the impugned notification before amendment for exclusion of the Explanation, are not germane to determination of eligibility for exemption of the impugned goods from duties of customs. For technical exposition, cited on behalf of Revenue as respondent in these appeals, on the specific description in the exemption notification to be tenable implies the possibility that tariff item 8525 8020 is also a likely description of the impugned goods which runs contrary to the finding in the impugned order of tariff item 8525 8090 to be the most apt description of the impugned goods. Consequently, there is disba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ganeshan, Advocate for the appellants Shri D S Maan, Deputy Commissioner (AR) for the respondent ORDER Impugning the order [order-in-original no. CC-VA/24/2018-19 Adj (I) ACC dated 28th February 2019] of Commissioner of Customs (Import), Air Cargo Complex (ACC), Chhatrapati Shivaji Maharaj International Airport (CSMIA), Mumbai, M/s Creative Newtech Ltd and other appellants challenge the adoption of rate of duty corresponding to tariff item 8525 8090 of First Schedule to Customs Tariff Act, 1975, with consequent denial of notification no. 12/2012-Cus dated 17th March 2012 (at serial no 428A) and notification no 50/2017-Cus dated 30th June 2017 (at serial no 502), for reassessment of cameras to duties of customs of ₹ 461,38,438 to recover ₹ 1,86,19,246 as duty short-paid under section 28 of Customs Act, 1962, along with applicable interest under section 28 AA of Customs Act, 1962, in 24 bills of entry filed between October 2016 and August 2070 on import of goods declared to be valued at ₹ 15,36,69,611 besides confiscating the said goods under section 111 (m) of Customs Act, 1962 though without imposition of any redemption fine. Another consignment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal in Sony India Pvt Ltd v. Commissioner of Customs [2018 (362) ELT 637 (Tri)] which upheld classification of similar cameras against tariff item 8525 8020 of First Schedule to Customs Tariff Act, 1975 even while holding against the appellant on eligibility for a notification, other than the one relevant to this dispute, claimed by them. 3. It is further contended by him that the adjudicating authority had been persuaded by Explanation below digital still image video camera in notification no. 25/2005-Cus dated 1st March 2005 which had not been claimed by the appellant for availment. At the same time, he contended that circular no. 334/5/2015-TRU dated 30th April 2015 of Central Board of Excise Customs (CBEC), intended to clarify the scope of exemption notification claimed by them after exclusion of the explanation therein, allows every kind of camera conforming to the description without being qualified by any specification as it did till then. It was also contended that circular no. 32/2007-Cus dated 10th September 2007 of Central Board of Excise Customs (CBEC), intended to clarify the goods covered by notification no. 25/2005-Cus dated 1st March 2005 (at serial no. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to tariff item 8525 8020 of First Schedule to Customs Tariff Act, 1975. In the light of this claim, it falls to customs authorities to justify a more specific heading appropriate to the goods and, in the event of the heading not being in dispute, a more appropriate sub-heading and, in the event of that to also not being in dispute, more appropriate tariff item as prescribed in rule 6 of General Rules for the Interpretation of the Import Tariff in Customs Tariff Act, 1975, as held by the Hon ble Supreme Court in HPL Chemicals Ltd v. Commissioner of Central Excise, Chandigarh [2006 (197) ELT 324 (SC)] thus 29. This apart, classification of goods is a matter relating to chargeability and the burden of proof is squarely upon the Revenue. If the Department intends to classify the goods under a particular heading or sub- heading different from that claim by the assessee, the Department has to produce proper evidence and discharge the burden of proof. In the present case the said burden has not been discharged at all by the Revenue and in Hindustan Ferodo Ltd v. Commissioner of Central Excise, Bombay [(1997) 2 SCC 677] that It is not in dispute before us as it cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 15/2012-Cus dated 17th March 2012, was held by the adjudicating authority to be applicable to gauge the meaning of the expression in any other notification too. Furthermore, note 3 in section XVI of First Schedule to Customs Tariff Act, 1975 determining classification of composite machines in terms of the component or machine performing the principal function was taken by the adjudicating authority as mandatory guidance to hold that the recording of video being the principal function of the impugned goods with capacity to take still image rendered it beyond the scope of conformity with the description in the notification claimed in those bills of entry. 7. It was also held in the impugned order that equipment type approval (ETA) , issued by Wireless Planning and Coordination wing of Ministry of Communications, mandated for import of any wireless device has described it as video camera and the absence of HSN code in invoices issued to other dealers of the same product indicated their intention all too well and the acceptance of classification determined by the customs authorities in an import effected by the appellant at Nhava Sheva evidence articulates deliberate inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the impugned entry in the notification claimed by the appellant at the time of import does not sit well with the onus to be discharged by customs authorities in conformity with the decisions of the Hon ble Supreme Court supra. 10. Learned Authorised Representative submits that the impugned goods, being action camera , are special purpose cameras that are not consistent, and conforming to principle of ejusdem generis, with the articles enumerated in tariff item 8525 8020 or 8525 8030 of First Schedule to Customs Tariff Act, 1975 and, therefore, to be appropriately placed within the description others corresponding to tariff item 8525 8090 of First Schedule to Customs Tariff Act, 1975. In the absence of discharge of the onus referred to supra, not by picking holes in the classification claimed by importers but by establishing the correctness of the classification adopted by the customs authorities, reliance placed upon the material from the website of the manufacturer, the deliberations of the European commission or the proposal of the European Union at the negotiations on the Information Technology Agreement (ITA 1) will not have any effect on the resolution of this dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smission apparatus for radio-broadcasting television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras, digital cameras and video camera recorders leaves little enough scope for fitment of any imported goods as corresponding to a residual others at the sub- heading level after transmission apparatus; corresponding to sub- heading 8525 50, transmission apparatus incorporating reception apparatus: corresponding to sub- heading 8525 60 and preceding television cameras, digital cameras and video camera recorders corresponding to sub-heading to 8525 80 of First Schedule to Customs Tariff Act, 1975. Moreover, the only three elements of the last of the sub-headings are separately enumerated as three tariff items leaving no scope, in the absence of reference to any composite mix of products in the description corresponding to the heading, for a fourth within it. In the absence of a finding in the impugned order that could, possibly, place the impugned goods within such general, and residual, description of others , the responsibility of customs authorities to initiate rejection of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
