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TMI Blog2024 (8) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authority. It is also on record in the impugned order that neither was any speaking order issued by the assessing authority nor was advantage taken of the offer from the first appellate authority to obtain a first hand account of the justification for revision. And yet, the impugned order has gone on to offer justifications, in the manner that the original authority should have, for the classification; almost akin to a dual-headed assessment that is not contemplated either in section 17 or section 128 of Customs Act, 1962. The jurisdiction of the first appellate authority is to acknowledge the existence of a dispute over assessment and then to determine the validity of justification offered for any detriment visited on an assessee. The correctness of classification adopted by the customs authorities for the finished product and the like adopted by the central excise authorities on manufactured product the classification of parts and accessories is merely derived inasmuch as such goods are separately enumerated within the rival headings. The scope of the description in heading 9032 of First Schedule to Customs Tariff Act, 1975 is not amenable to stretching as a free standin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 990 of First Schedule to Customs Tariff Act, 1975 and of Schedule to Central Excise Tariff Act, 1985. The adjudicating authority in the central excise jurisdiction had also imposed penalties on the assessees concerned as well as on one individual in each of the two proceedings which came to be dropped by first appellate authority and Commissioner of Customs, Nagpur has filed appeals challenging the escapement of M/s Endress + Hauser Flowtec (India) Pvt Ltd and M/s Endress + Hauser (India) Automation Instrumentation Pvt Ltd from penal consequences. 2. The appeal of M/s Emerson Process Management India Pvt Ltd concerns imports of flow meters , pressure transmitters and level transmitters , as well as parts and accessories imported for manufacture of like goods, against 1361 bills of entry between November 2013 and August 2014 that were ordered to be re-classified as tariff item 9032 8990 and 9032 9000 of First Schedule to Customs Tariff Act, 1975 respectively which deprived them of exemption from duties of customs available to goods classified within heading 9026 of First Schedule to Customs Tariff Act, 1975 by recourse to notification no. 24/2005-Cus dated 1st March 2005 (sl. no. 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er [order-in-appeal no. NGP/EXCUS/000/APPL/454-55/18-19 dated 23rd January 2019] disposing off appeal of M/s Endress + Hauser (India) Automation Instrumentation Pvt Ltd, upheld the findings, with relief accorded only to the extent of setting aside penalties imposed on them as well as individual concerned, leading to the present dispute before us. 5. We have heard Learned Counsel for appellants and Learned Authorized Representative at length and the pivot of the rival submissions dwelt on the substantive differences between the rival headings with the other alleged to be an inaccurate portrayal of the functionality of the impugned measuring instruments. We find ourselves unable to appreciate the nuanced perspective and the well-honed approach to the exercise in classification when our immediate concern is, and as it should be, compliance with the rules of engagement. Accordingly, we turn our attention to those aspects in this layered dispute. 6. We cannot but address the glaring misapplication of appellate jurisdiction insofar as the two bills of entry [appeal no. 87948 of 2019 and appeal no. 88205 of 2019] pertaining to imports are concerned. It is on record that the assessing auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validity of revision, it must be conceded that, in the event of the revision being upheld, the jurisdiction had been rightly invoked. We are, thus, at the core of the dispute: the correctness of classification adopted by the customs authorities for the finished product and the like adopted by the central excise authorities on manufactured product the classification of parts and accessories is merely derived inasmuch as such goods are separately enumerated within the rival headings. 8. The fundamental obligation of assessing authority in classification disputes has been set out in Hindustan Ferodo Ltd v. Collector of Central Excise [1997 (89) ELT 16 (SC)] thus It is not in dispute before us as it cannot be, that onus of establishing that the said rings fell within Item No. 22-F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed. and thus 28. This apart, classification of goods is a matter relating to chargeability and the burden of proof is squarely upon the Revenue. If the Department inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring instruments , as well as the measuring instruments to be manufactured by them, for no other would have entitled them to exemption. In doing so, they also endowed themselves with the Achilles heel of exclusions in the description and which, for not finding coverage under the said notification, the lower authorities fastened heading 9032 of First Schedule to Customs Tariff Act, 1975 as the conveniencing option. It is the netting of various threads that casts doubt on the modes adopted for classification. 10. In resorting to residual Others corresponding to sub-heading 9032 89 of First Schedule to Customs Tariff Act, 1975 below sub-classification describing Other instruments and apparatus other than thermostats and manostats within Automatic regulating or controlling instruments and apparatus without any heed to the peculiar structuring of this particular heading, there has been a glaring lapse in the classification exercise. 11. There has been no examination of the effect of the single sub-classification on the subheadings below especially when the heading itself is restricted to instruments and accessories which appears to have been comprehensively covered in the enumerations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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