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TMI Blog2023 (11) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... eto by the Commissioner (Appeals) though being the first appellate authority. The impugned order is therefore unsustainable and deserves to be set aside with a direction to the appellate authority to consider the appeal and decide the same giving proper and substantive reasoning in support thereof. Since the impugned order does not reflect any application of mind, it would be appropriate to remand the appeal to the Commissioner (Appeals) to discuss the issues on merit - appeal allowed by way of remand. - MS. BINU TAMTA, MEMBER (JUDICIAL) AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Anshuman Sahni, Advocate for the appellant. Shri M. Shukla, Authorised Representative for the respondent. ORDER The present appeal has been filed challenging the Order-in-Appeal No. CC(A)CUS/D-1/ACC(IMP)/656/2018-2019 dated 31.01.2019, whereby the appeal filed by the appellant was dismissed and the order-in-original was affirmed. 2. The facts of the present case are that the appellant filed Bill of Entry No.7205764 dated 24.10.2016 for clearance of goods imported from Overseas supplier M/s. Denix S.A. C/Dels Bijuteers, Spain. The description, quantity and value of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 Letter opener (Decoration and Gift Articles, Replica Weapons for display purpose F-3033 8214 10 10 25 18 F-3027 25 19 F-3029 25 20 F-3030 25 21 F-3032 25 22 F-3048 25 23 F-3047 25 24 F-3059 25 25 F-3045 25 26 F-3066 25 27 F-3080 8214 10 10 25 28 1026 5 29 1009/G 5 30 Weapons for display Purpose) 1129/G 8306 29 90 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57 4125/L 5 3. The said Bill of Entry was facilitated with RMS and was, therefore, neither prescribed for assessment nor for examination. The matter was forwarded to Special Intelligence and Investigation Bureo (SIIB) for investigation as similar cases of imitation /replica of Fire Arms were being investigated by SIIB of Air Cargo Complex (Import). The consignment was subjected to 100% examination on 28.11.2016, whereby it was found that the goods were declared in the subject bill of entry as Antique Finished Pistols , Antique Finished Rifles and Antique Finished Carbind Guns . The details are at Sl.No.35-44, 45-49 and 50 respectively of the Table-A given above, though, prima facie, the goods appeared to be of articles of lethal weapons. Similarly, the swords detailed at Sl.Nos.51-55 and daggers detailed at Sl.No.56-57 of Table A were found to have blade size of more than 9 . The samples were drawn for further investigation. The appellant had earlier imported similar consignment vide Bill of Entry No.79761580 dated 12.01.2015 and the same was stopped by ICE, Patparganj, which was challenged by the appellant in Writ Petition N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the following categories of goods:- i. Novelties ii. Hangers iii. Complements iv. Cannons v.Panoplies vi.Axes Halberds vii. Leather articles\ viii. Firearms with mechanism a. Arms S.XVII-XVIII-XIX Guns Museums Pirate Pistols Pocket Pistols Pistols S.XVII, XVIII Trabucos X.XVIII Rifles S.XVIII b. Western Revolvers Guns Rifles c. World War I II Pistols and Revolvers SMGs and Rifles d. Modern Weapons Guns Revolvers SMGs and Rifles ix. Letter Openers x. Swords and Daggers Dagers Byonets Swords Sabres. 5. The subject consignment was placed under seizure on 19.12.2016 under Section 110 of the Customs Act, 1962. The appellant filed Writ Petition No. C/12051/2016 referring to the earlier writ petition and the orders passed therein and accordingly, prayed that the present Bill of Entry be assessed and the goods may be released. The Hon ble High Court vide Order dated 22.12.2016 disposed of the writ petition, inter alia, observing that :- A reading of the previous order of the Court in the petitioner s c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 112(a) of the Act and under Section 114 (AA) for intentionally using false and incorrect documents. The above show cause notice was adjudicated and vide order-in-original dated 23.09.2018, the Adjudicating Authority passed the following order:- (i) I reject the classification of imported goods mentioned at Sl.No.35-50 and sl.No.51-57 of Table-A, which were classified under CTH 8306 29 90 CTH 7323 99 90 respectively in the Bill of Entry No.7205764 dated 24.10.2016 and order for classification of these goods under CTH 9304 00 00 in respect of goods at Sl.No.35-50 and under CTH 9307 00 00 in respect of goods at Sl.No.51-57 of Table A. (ii) I reject the declared assessable value of Rs.6,56,842.62/- for the imported goods covered under Bill of Entry No.7205764 dated 24.10.2016 in terms of Rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Section 14 of the Customs Act, 1962. (ii) I reject the declared assessable value of Rs.6,56,842.62 for the imported goods covered under Bill of Entry No.7205764 dated 24.10.2016 in terms of Rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 read with Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions filed, we may consider the contentions raised both by the appellant as well as by the Department. 9. Mr. Anshuman Sahni, learned Counsel for the appellant raised preliminary issue that the impugned order lacks application of mind and has been passed in violation of principles of natural justice. On merit, he referred to similar consignment vide Bills of Entry No.7961580 dated 12.01.2015 which was cleared by the Customs Authorities as ordered by the Delhi High Court vide Order dated 26.11.2015. It is also his contention that the earlier FSL report dated 23.11.2015 has been relied upon in a selective manner and thereby ignored the observations that, no projectile can be fired in the present state and the present FSL report dated 10.03.2017 has not given any view, whether the goods are capable of discharging any projectile or have all firing mechanism and, therefore, a mere composition of conversion in future cannot be a ground to retain the goods. The learned counsel also referred to the Certificate/declaration issued by the supplier/manufacturer of the imported goods stating that the goods imported are classifiable under CTH 83062900 and, therefore, there is no pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vers arms, other than firearms whereunder swords and daggers with blades longer than 9 or wider than 2 have been covered and therefore the same are rightly classifiable under chapter 93. In support of her contentions, the learned AR has relied on the ruling of US No. HQH023504, where replica guns were held to be classified under subheading 9304.00.20., which provides for: Other arms (for example, spring, air, or gas guns and pistols, truncheons), excluding those of heading 9307 . The reasoning in the said decision was that replicas of real guns are classified on the basis of their similarity in appearance to the real gun of which they are on imitation. Referring to Para 2.03 of the Foreign Trade Policy she relied on the provisions of rule 89 of the Arms Rules, 2016 whereby import of replica firearms are subject to submission of certificate of innocuousness from the manufacturing company of the country of export and an undertaking from the importer that the replica firearms are incapable, even with modification, of expelling or launching a shot, bullet or projectile. In fact, in view of the said provisions, the High Court of Delhi in its order dated 22.12.2016 rejected the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tique Finish . Instead the website of manufacturer-cumsupplier s website declared these goods as Modern Weapons World War I II. 11. Considering the elaborate arguments made on behalf of the appellant as well as the revenue, we find that the appellate authority has not considered the same in proper perspective. Rather on perusal of the impugned order we find that the same is repetition of the order in original passed by the adjudicating authority. We agree with the learned counsel for the appellant that the impugned order lacks application of mind, in as much as it is verbatim the same as the order under challenge. Neither the applicability of the legal provisions particularly with reference to the Arms Act and the Rules and various notifications have been considered nor any reasoning has been given with reference thereto by the Commissioner (Appeals) though being the first appellate authority. The impugned order is therefore unsustainable and deserves to be set aside with a direction to the appellate authority to consider the appeal and decide the same giving proper and substantive reasoning in support thereof. Since the impugned order does not reflect any application o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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