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TMI Blog2023 (8) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... iled specifications of the materials, processing, quality control, dimensions, tolerances, workmanship and finish, pre-inspection, sampling procedure, conformity, test methods, packaging and user instructions - there are nothing in these to suggest that these are the same as sun glasses. It is undisputed that the goods fall under the broad heading of 9004. The dispute is if they are sunglasses and, therefore, fall under 90041000. We found, after examining the contract of the appellant with the Army (to meet which these were imported), that they are not sunglasses but are Snow Goggles. Therefore, the disputed goods cannot fall under 90041000 (sun glasses) and must fall under 900490 Other . This heading covers three types of goods viz., passive night vision goggles, prismatic eye glasses for reading and others. Night vision goggles enable the viewer to see in the dark by converting the infra red rays which are emitted by all objects even in the dark, into visible light. Prismatic eye glasses are meant for reading correcting the vision. The imported goods do not fall under either of these categories. Hence, they were correctly classified by the importer under the residual CTH 9004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligate the importer to do the impossible task of predicting the views of the officer and following them. Thus, wrong classification or wrong claim of an exemption notification, in the Bill of Entry even if they are found to be completely incorrect, do not attract section 111(m) or the consequential penalty under section 112. The impugned order is set aside and the appeal is allowed. - MS. BINU TAMTA, MEMBER ( JUDICIAL ) AND MR. P. V. SUBBA RAO, MEMBER ( TECHNICAL ) Shri P. Chakrapani, Consultant and Shri Anil Kumar, Advocate for the appellant Shri S.K. Rahman, Principal Commissioner (AR) and Shri Rakesh Kumar, Authorised Representatives for the respondent ORDER M/s. Aureole Inspecs India Pvt. Ltd.[ Appellan] filed this appeal to assail the Order-in- Original [ Impugned order] dated 18 August 2020 passed by the Principal Commissioner of Customs Air cargo complex (Import), New Delhi. The appellant imported snow goggles which it supplied to the Indian Army as per its contract dated 31 August 2018 to supply 79,245 Snow Goggles. The appellant filed Bill of Entry dated 21.9.2019 to clear the snow goggles classifying them under Customs Tariff Heading [CTH] 900 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods and should prevail over the more general description of sun glasses as per Rule 3(a) of the General Rules for Interpretation of Tariff [ GIR ] . 5. The adjudicating authority erred in holding that Sun glasses and Snow Goggles are one and the same for the reason that both are meant for protecting the eyes. 6. The goods should be classified as they are known to the end-users/customers. The contract which the appellant received was for Snow Goggles and all the specifications in the contract are for Snow Goggles and nothing in the entire contract shows that they are sun glasses. The relevant portion of the contract are as follows: 1. Clause No. 1.0 of specification for Snow Goggles:- Scope- This specification covers Qualitative and other requirement for supply of snow goggles, Cat. Pt. No.- NIV, which are used for protection of eye in snowy region . 2. Clause No. 16.2.1 of specification for Snow Goggles:- Recommendations for use:- These high altitude snow goggles are designed to provide protection against snow, sun, wind and cold conditions. Not recommended for use when driving. Ensure that air can freely circulate around the ventilation holes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the old Bills of Entry are concerned, the goods have already been cleared for home consumption and the assessment is final. Hence no duty can be charged under section 28 without appealing against the assessment order. Reliance is placed on Priya Blue Industries Ltd. vs Commissioner of Customs (Prev) [ 2004(172) ELT 145(SC) ] 10. Therefore, the entire demand of duty in the case along with interest and the imposition of penalty cannot be sustained. The appeal may please be allowed and the impugned order may be set aside. Submissions on behalf of the Revenue 11. Sun glasses and Snow Goggles are essentially the same as both are meant to protect the eyes from bright sunlight. The term sun glasses has a wide meaning which encompasses snow goggles in it. A perusal of the explanatory notes to the HSN 9004 shows that it covers all the articles meant for protecting the eyes or correcting their defects related to vision. 12. Wikipedia shows that Snow Googles are those goggles which fit tightly against the face so that the only light entering is through the slits. Similarly, sun glasses are also a form of protective eyewear for protection from sun. 13. The adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lock. 30 or 60 such boxes or cases shall be packed in a 7 ply corrugated boxes of size as agreed between user and manufacturer shall be finally tied with polypropylene strapping. 16.2 USER INSTRUCTIONS- Along with Goggles, all individual case or box shall contain a Guarantee Certificate for protection against UV/Visible rays in addition to following user instructions. 16.2.1 RECOMMENDATIONS FOR USE- These high altitude snow goggles are designed to provide protection against snow, sun, wind and cold conditions. Not recommended for use when driving. Ensure that air can freely circulate around the ventilation holes, which are specially developed to allow water droplets to evaporate. This will prevent any condensation from impairing your vision. To ensure a perfect individual fit use the head strap slide adjustor. 16.2.2 MAINTENANCE AND CLEANING- The best way to clean your goggles is to hold the lens under a stream of lukewarm water, then rinse and leave to dry. Do not rub or wipe the inner surface of the lens as the stop-fog coating may lose its effectiveness. Do not use aggressive products such as solvents or detergents which could alter the goggles mechanical proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) and must fall under 900490 Other . This heading covers three types of goods viz., passive night vision goggles, prismatic eye glasses for reading and others. Night vision goggles enable the viewer to see in the dark by converting the infra red rays which are emitted by all objects even in the dark, into visible light. Prismatic eye glasses are meant for reading correcting the vision. The imported goods do not fall under either of these categories. Hence, they were correctly classified by the importer under the residual CTH 90049090 as others. 21. Since we have decided the classification in favour of the appellant, the demand needs to be set aside. Consequently, the demand of interest also needs to be set aside. 22. As the demand itself is set aside, the fine imposed on the appellant also needs to be set aside on this ground alone. Further, penalty under section 112(a) can be imposed if the goods are liable to confiscation under any clause of section 111. In this case, the impugned order held that the goods imported by the appellant which had already been cleared for home consumption were liable for confiscation under section 111(m) for the reason that the imported goods d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption or concession of duty, tax, cess or any other sum, consequent upon any notification issued therefor under this Act or under the Customs Tariff Act or under any other law for the time being in force; (d) the quantity, weight, volume, measurement or other specifics where such duty, tax, cess or any other sum is leviable on the basis of the quantity, weight, volume, measurement or other specifics of such goods; (e) the origin of such goods determined in accordance with the provisions of the Customs Tariff Act or the rules made thereunder, if the amount of duty, tax, cess or any other sum is affected by the origin of such goods; (f) any other specific factor which affects the duty, tax, cess or any other sum payable on such goods, and includes provisional assessment, self-assessment, re-assessment and any assessment in which the duty assessed is nil ; 24. Thus, the classification of the goods under the Customs Tariff is a part of assessment. The next question is who can do this assessment. Section 17, reads as follows: Section 17. Assessment of duty. - (1) An importer entering any imported goods under section 46, or an exporter entering any export goods under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 111(m) on the ground that the importer classified the goods under a CTH different from the opinion of the officer. Firstly, the importer is not an expert in taxation and can make mistakes and he cannot be penalized for making mistakes. Secondly, classification is a matter of opinion and the importer s goods cannot be confiscated nor can he be penalized for his opinion. Thirdly, the filing of the Bill of Entry and the self-assessment precede re-assessment by the proper officer and it is impossible for the importer to anticipate under which heading the officer is likely to classify the goods and file the Bill of Entry accordingly. Fourthly, there is no legal obligation on the importer to conform to the possible subsequent view of the officer. The law cannot be read to obligate the importer to do the impossible task of predicting the views of the officer and following them. For all these reasons, wrong classification or wrong claim of an exemption notification, in the Bill of Entry even if they are found to be completely incorrect, do not attract section 111(m) or the consequential penalty under section 112. 28. In view of the above, the impugned order is set aside and the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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