TMI Blog2024 (12) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... classification as proposed by investigating agency is inappropriate. It runs contrary that the prescription of self-assessment and orders of re-assessment in section 17 of Customs Act, 1962. It goes without saying that, between the time of filing of bill of entry under section 36 of Customs Act, 1962 and its final disposal in terms of section 48 of Customs Act, 1962, goods exist entirely in the control of customs authorities and overreach in persuading to conform is not to be ruled out. The very fact that the assessment was challenged immediately thereafter is an indication of lack of concurrence and enforced conformity. In these circumstances, it was incumbent upon the first appellate authority to ensure compliance with law on the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant benefit of notification [no. 85/2004-Cus dated 31st August 2004] was revised to duty liability appropriate to tariff item 84.15 8210 of First Schedule to Customs Tariff Act, 1975, is the appropriateness of split air conditioners incorporating refrigerating unit with dual function (cooling and heating) for which the said exemption was not available as the correct classification. 2. According to Learned Counsel for appellant, the issue has since been decided by the Tribunal in Daikin Air-Conditioning India P Ltd v. Principal Commissioner of Customs (NS-I), JNCH, Nhava Sheva [2020 (374) ELT 768 (Tri.-Mumbai)]. 3. Learned Authorised Representative submitted that the said order of the Tribunal has been appealed against by Revenue and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of investigations, the assessing authorities had been adopting the classification as proposed by the investigating agency and the present appeals pertain to the consignments imported thereafter and before the issue of show cause notice which was disposed off by the Tribunal in re Daikin Air-Conditioning India P Ltd. 5. It would, therefore, appear that, in these circumstances, disposal of these appeals would not be prejudicial to Revenue by any stretch. The decision of the Hon'ble Supreme Court in re Cargil India Pvt Ltd was in response to the Tribunal having disposed off the appeal before it without confirming, modifying or annulling or referring the case back to the authority which passed it , as set out in section 129B(1) of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et out by Hon'ble Supreme Court 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, in HPL Chemicals Ltd v. Commissioner of Central; Excise, Chandigarh [2006 (197) ELT 324 (SC)], that 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 intends ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protest or any other suggestion of dissonance, that the original authority was not required to issue speaking order. From a plain reading of section 17 of Customs Act, 1962, it is apparent that, to the extent that self-assessment has been overruled, and except in circumstances in written consent for such re-assessment it was obligatory for the proper officer to issue a speaking order. Failure to do so is a breach of that obligation imposed by the statute. 8. That an assessing officer may choose to be guided by the proposals of investigating agency is not surprising but that an assessing officer should insist upon the importer opting for classification as proposed by investigating agency is inappropriate. It runs contrary that the prescripti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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