9911796707
TMI Blog2024 (2) TMI 1509X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same Appellant, they are being examined and disposed by this common order. 2. The issues examined in this order are listed in the index below: Sl. No. Topic Para No. Page No. 1. Facts of the case 3 4 2. The Classification Principle and Government Policy 5.0 9 3. The Burden of Proof in the case of Fiscal Exemptions and in the Classification of goods 6.0 13 4. Receivers 8.0 15 4a Can an appellant challenge a matter in appeal which they had earlier acquiesced 8.2 17 5. Microphones 9.0 18 5a Whether microphones are inputs or parts for use in manufacture of PCBA 9.4 21 5b Whether general description must yield to a special one 9.6 25 5c Whether the insertion in notification is clarificatory and retrospective in nature 9.7 26 5d Boards Circulars and the doctrine of contemporanea exposition 9.10 29 5e Exemption Notification should be interpreted strictly 9.11 30 5f Whether intention of Notification to be understood through declared Government Policy 9.13 31 5g Whether redemption fine can be imposed when goods are not available 9.16 33 5h CESTAT Judgments on exemption to cellular microphones 9.17 34 6. Battery cover, bac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1962. Aggrieved by the demand of differential duty and imposition of penalty, the importer has filed Appeal No. C/40184/2020. Department is aggrieved by the impugned order for non-imposition of redemption fine and has filed Appeal No. C/40295/2021. Battery Cover, Back Cover, Camera Lens, Front Cover (Order in Original No. 58/2020 dated 21.1.2020) 3.3 During the period July 2017 to January 2018 the Appellant imported 'Battery Cover, Back Cover, Camera Lens and Front Cover' of mobile phones, classifying them under CTH 8517 7090 and claimed the concessional rate of duty under S. No. 499 of Notification Noo. 50/2017 - Cus. dated 30.06.2017. The department however was of the view that the subject goods were rightly classifiable under CTH 3920 9999 and that exemption under Sl. No. 499 of Notification No. 50/2017-Cus. was not available to the imported goods. The learned Commissioner after following the due process confirmed the entire differential duty along with interest. Aggrieved by the demand of differential duty and imposition of penalty, importer has filed Appeal No. C/40392/2020, C/40184/2020 and C/40391/2020. Department being aggrieved by the impugned order for non-imposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Duty @1% without input tax credit (or 12.5% with input tax credit) was made available to domestic manufacturers of Cellular mobile handsets. Parts, components and accessories for the manufacture of Cellular mobile handsets; Parts/ sub-parts/ inputs for the manufacture of such parts and components were exempted from Basic Customs Duty (BCD), CVD/ Excise Duty and Special Additional Duty of Customs (SAD). This gave an impetus to the Assembly, Programming, Testing and Packaging (APTP) model of manufacturing Cellular mobile handsets. 2. To promote depth in manufacturing of domestically manufactured Cellular mobile handsets, a phased manufacturing roadmap has been prepared keeping in view the state of play of the design/ manufacturing ecosystem in the country, wherein through appropriate fiscal and financial incentives, indigenous manufacturing of Cellular mobile handsets and various sub-assemblies that go into the manufacturing of Cellular mobile handsets shall be promoted over a period of time. The intention is to substantially increase value addition within the country. 3. The following Phased Manufacturing Programme (PMP) is notified with the objective of progressively increa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oadmap keeping in view the state of play of the design/ manufacturing ecosystem in the country. Appropriate fiscal and financial incentives which include Customs duty exemptions, were planned to help indigenous manufacturing of Cellular mobile handsets and various sub-assemblies that go into the manufacturing of Cellular mobile handsets over a planned period of time in India. A lot of thought had gone into the policy and any disruption to the stated intentions by changing the classification as against the HS mentioned in the notification or by giving unintended exemptions would be determinantal to the policy and upset the certainty of duty that had been notified. The domestic cell phone manufacturing sector faces a lack of a level playing field vis-à-vis competing nations hence allowing unintended exemption to cell phone parts would put domestic industry to considerable hardship. Even as per the Apex Court judgments departmental officers are bound by Boards circulars. He hence prayed that the appeals made by Flextronics may be rejected and the impugned orders, departments appeals be upheld. The Classification Principle And Government Policy 5.0 In their written submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions." This Rule is followed by Rules of Interpretation 2 to 6 none of which provide for classification either based on any exemption notification or on the basis of any heading mentioned in any policy of any Ministry of the Government. Therefore, the goods cannot be reclassified based on the exemption notification issued under Section 25 or on the basis of any policy of any Ministry. Notifications or policies can be issued, modified or withdrawn but the classification of the goods under the tariff will remain the same. Only if the tariff itself is amended can the classification change. (emphasis as in the original order) We do not dispute the views expressed by the Coordinate Bench of this Tribunal that the power to classify and assess import/ export goods is that of the 'proper officer' and the importer/ exporter under the Customs Act 1962. In case the department wants to change the classification of the goods declared by the importer, the burden of proof is on the taxing authority to show that the particular goods in question is taxable in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events - self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability." (emphasis added) 5.2 Hence we feel that if the need arises to understand the intention of Government in issuing an exemption notification in the impugned matter, we could refer to the phased manufacturing policy of Government, to the extent relevant. It is also a fact that in technical matters pertaining to electronics and information technology the Board apart from a reference to the HSN also from time to time consulted the Department of Electronics and Information Technology, Ministry of Communication and Information Technology, before issuing clarificatory Circulars for the sake of uniformity and for guiding assessing officers and the trade. Though this may not be binding on Tribunals, it has persuasive value. As stated by the Hon'ble Supreme Court in K.P. Varghese vs The Income Tax Officer, Ernakulam [1981 AIR 1922 / 1982 SCR (1) 629] (supra)], 'this is in accord with the recent trend in juristic thought not only in Western countries but also in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ambiguity as to its applicability with reference to the entitlement of the assessee or the rate of tax to be applied? It held: "52. To sum up, we answer the reference holding as under (1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. (3) The ratio in Sun Export case (supra) is not correct and all the decisions which took similar view as in Sun Export Case (supra) stands overruled." The Hon'ble Supreme Court having declared the law on exemption notifications, it is binding on all judicial bodies to apply the same whenever an ambiguity exists in the application of a notification. 6.3 To recapitulate (i) While availing the benefit of an exemption notification the burden of proving applicability would be on the assessee/importer. He has to show that his case comes within the parameters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustom House. No reply was received from the Appellant. Then a Pre-Show Cause Notice Consultation letter dated 16/07/2019 was issued to the Appellant. Again, no reply was received from the Appellants end. Accordingly, the Appellant was issued with a Show Cause Notice (SCN) dated 30/07/2019 on the subject matter. The Appellant filed their reply dated 06/11/2019 to the SCN. The reply contested the SCN on the grounds of penalty and confiscation but did not challenge the merits of the classification proposed. The Appellant availed the third opportunity for a personal hearing during which they submitted a TR6 challan copy dated 05/11/2019 evidencing payment of duty involved and requested for dropping penalty proceedings. The learned Commissioner after examining the issue has vide the impugned order confirmed the duty with interest. Although she found the goods liable for confiscation, she did not impose a fine in lieu of confiscation of the same as the goods had been cleared for home consumption, in the light of the Hon'ble Supreme Court's judgment in Commissioner of Customs Vs. Chinku Exports [2005 (184) ELT A36 (SC)], she was not inclined to impose a heavy penalty on the importer for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are adjudicated upon as they obtain at the commencement of the lis. However, we find that the Appellant has filed an appeal within time, whereby the acceptance or acquiescence at the pre order stage has not become final and the rights of the opposite party has not crystalised. The Appellant however should have stated the compelling reason for the change in legal stand or risk the rejection of their pleadings, for at times it may be considered unfair to the other side in sending back the dispute to the starting point after a lapse of many years. However, we feel that in the circumstances of this case and in the interest of justice the appellant can be allowed to resile from their earlier position and prove their case by rebutting the charges in the SCN, in their appeal before the Tribunal for the first time, so long as the relevant facts which are on record are not sought to be altered. Due to the initial stand taken by the Appellant, including the paying of duty, a complete or effectual adjudication of the proceedings, did not take place on merits before the Original Authority who was also lulled into imposing a light penalty considering the payment of duty. There was no examining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with microphones per se (standalone and not mobile parts). Appellant's Averments 9.1 The following pleadings have been made by the Appellant: (i) All microphones, irrespective of whether they are used in cellular mobile phones or otherwise are covered in List 20 (S. No. 427) of Notification No. 50/2017-Cus. dated 30.06.2017 (ii) The 'microphones' imported by Flextronics are transducers/variable capacitors that convert acoustic pressure waves to electric signals. They are parts mounted on Printed Circuit Board Assembly (PCBA) of cellular mobile phones using Surface Mounting Technology (SMT) and are therefore eligible for exemption under S. No. 6A of Notification No. 57/2017-Cus. dated 30.06.2017. (iii) Exemption to microphones under S. No. 6A of Notification No. 57/2017-Cus. dated 30.06.2017 has been withdrawn only after issuance of Notification No. 24/2019-Cus. dated 06.07.2019 amending Notification No. 57/2017-Cus. (iv) It cannot be presumed that the amendment dated 06.07.2019 was only clarificatory and retrospective in nature. (v) It had been decided by the Tribunal in Vivo Mobile India - I (supra) that the exemption under Sl. No. 427 of Notification No. 50/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , diode, ICs etc. to create a functional circuit. It provides for a MIC interphase. PCBA is a part of the cellular phone just as a microphone, camera, LCD etc are. All these items, mentioned are at some stage of manufacture of cellular phones soldered onto the PCBA circuitry, for they require power supply from the battery to function among other things, but that does not make them a part of the PCBA. A microphone is a distinct commodity and is not known in trade parlance as a part of a PCBA. Their integration with the PCBA contributes to the functionality of the cellular phone. Just as typewriter ribbon is not an essential part of a typewriter, microphone is neither a basic construction component or an essential part of a PCBA, and they are commercially not known to be a part of PCBA. They play a crucial role in devices such as cellular phones, headsets, audio recording equipment etc. to capture sound waves and convert them into electrical signals. Just because a microphone is required for functional testing of the PCBA circuitry it does not mean that it is a part of the PCBA. It was also pointed out by Revenue during arguments that while the period of dispute in the case of microp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1] have settled this proposition. How is the product identified by the class or section of people dealing with or using the product is also a test when the statute itself does not contain any definition and commercial parlance would assume importance when the goods are marketable as was held in Atul Glass Industrial (Pvt.) Ltd. v. CCE [1986 (3) SCC 480] and Indian Aluminium Cables Ltd. v. Union of India [1985 (3) SCC 284]. In Asian Paints India Ltd. v. CCE [1988 (2) SCC 470] which was a case of emulsion paint, at para 8, it was said: "It is well settled that the commercial meaning has to be given to the expressions in tariff items. Where definition of a word has not been given, it must be construed in its popular sense. Popular sense means that sense which people conversant with the subject matter with which the statute is dealing, would attribute to it." Again in Court in C.I.T. Andhra Pradesh v. M/s. Taj Mahal Hotel Secunderabad, ([1972] 1 SCR 168) stated that in incorporating items in the statutes like Excise, Customs or Sales-tax whose primary object is to raise revenue and for which to classify diverse products, articles and substance resort should be had not to the scien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that effect. The issue of the valid prevalence of two contradictory positions in the same notification would fail even if the test for reasonability is that of the "prudent man". One way to resolve the issue is by expanding on the Latin maxim generalia specialibus non derogant which means that general law shall not derrogate from specific law or the provisions of a general statute must yield to those of a special one. A similar view was held by the Apex Court in J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs State of U.P., [(1961) 3 SCR 185], where it was clarified that not only does this rule of construction resolve the conflicts between the general provision in one statute and the special provision in another, it also finds utility in resolving a conflict between general and special provisions in the same legislative instrument too and observed that: "9. ... The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue as to whether the amendment was clarificatory or substantive in nature and, whether it will have retrospective effect or it was not so." Since Notification No. 24/2019 Cus. dated 06.07.2019 amending Sl. No 6A of Notification No. 57/2017-Cus. by way of a 'proviso' seeks to remove the confusion which pertains to two Sl. Nos. of the same notification it is hence only clarificatory in nature. A harmonious reading of the notification shows that it could never have been intended by the Legislature to have taxed the same goods at two different rates of duty, more so in the very same notification, for the Appellant to choose the Sl. No. which is more beneficial to him. In the case of M/s Rohit Pulp and Paper Mills Ltd Vs Collector of Central Excise, reported in [1990 (47) ELT 491 (SC)], the Apex Court held that 'in interpreting the scope of any notification, the Court has first to keep in mind the object and purpose of the Notification. All parts of it should be read harmoniously in aid of, and not in derogation of that purpose'. Further the circumstances under which the amendment was brought in existence and the consequences of the amendment would have to be understood in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But the contemporaneous construction placed by administrative or executive officers charged with executing the statute, although not controlling, is nevertheless entitled to considerable weight as highly persuasive. TRU DOF No. 334/3/2019-TRU dated 05/07/2019 at sl 16 under Chapter 84 and 85 of Annexure 'A' hence is of relevance. It states: "(16) Microphones, receivers and SIM sockets of mobile phones attracts 15% BCD by tariff rate. Further, in general speakers attracts 15% BCD by tariff rate. Also, connectors for use in cellular mobile phones attracts concessional 10% BCD [S. No. 5B of the notification No. 57/2017-Customs., dated 30th June, 2017 refers]. Now all these items have been explicitly excluded from scope of entry at Sr. No. 6A of the Notification No. 57/2017-Cus." (emphasis added) The circular makes it clear that the intention of the amendment was to make explicit what was considered implicit and remove any confusion there may have been in this regard. The TRU's DO reflects the position as discussed above. 9.11 Exemption notification should be interpreted strictly. Further the Appellant has claimed full BCD exemption under of S. No. 427 of Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh declared Government Policy The matter can be looked at from another angle. Language is an imperfect vehicle of thought and the ability of written language to precisely convey technical information and description of products as done by mathematical symbols and formula, especially in the case of legal matters, enactment or notifications, may not at all times be achieved. This inexactitude of words at times makes it necessary as discussed above, to understand the legislative intent in issuing these notifications by looking at the subject of legislation and object of the law, when an ambiguity exists. As held by the Hon'ble Supreme Court in R.K. Garg vs Union of India (supra), laws impacting economic activities must be viewed with greater latitude and deference. We can hence examine the policy of Government with regard to the Phased Manufacturing Programme (PMP) for promoting indigenous manufacturing of Cellular Mobile Handsets, its sub-assemblies and parts/ sub-parts/ inputs of the sub-assemblies relied upon by Revenue in the impugned order and during oral arguments. 9.14 It is seen that PMP was notified with the objective of progressively increasing the domestic value addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Asstt. Collector v. Bussa Overseas and Properties Pvt. Ltd. [2004 (163) E.L.T. A160 (S.C.)], dismissed the SLP against the judgment and order dated 04/08/1992 of the Bombay High Court in Bussa Overseas and Properties Pvt. Ltd. v. C.L. Mahar, Asstt. Collector [2004 (163) E.L.T. 304 (Bom.)] The High Court had held that once the imported goods are cleared for home consumption they cease to be 'imported goods' as defined in Section 2 of the Customs Act, 1962 and are consequently not liable to confiscation. This needs to be differentiated from the Supreme Court judgement in the case of Weston Components Ltd. Vs Commissioner of Customs, New Delhi [2000 (115) ELT 278 (SC)], wherein the Hon'ble Supreme Court, had earlier upheld confiscation of goods and consequently imposition of redemption fine on the goods not physically available but the same (goods) were allowed provisional release under Bond. In the present case no bond has been executed by the Appellant for the clearance of goods. The Hon'ble Supreme Court again in Commissioner Vs Finesse Creation Inc. [2010 (255) E.L.T. A120 (S.C.)], dismissed the SLP filed by Commissioner of Customs (Import) against the Judgment of the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te with regard to the impugned goods that are a subject matter of a specific policy formulation of the government and try to resolve it by considering the law as per the statute and also as declared by the Apex Court in a number of cases, in as much as; (i) while dealing with goods falling under statutes like the Customs Act 1962 whose primary object is to raise revenue and for which to classify diverse products, articles and substance arises, resort should be had not to the scientific and technical meaning of the substance but to their popular meaning viz., the meaning attached to these expressions by those dealing in them. [Ramavatar Budhaiprasad v. Assistant Sales Tax Officer [(1962) 1 SCR 279]] (ii) Notification No. 24/2019 Cus dated 06.07.2019 amending Sl. No 6A of Notification No. 57/2017-Cus. by introducing a 'proviso' only seeks to remove the confusion which pertains to two Sl. Nos. of the same notification and is only clarificatory in nature and will hence have retrospective effect. The Appellant in this case agrees that the amendment removes the exemption benefit for the impugned goods, but only prospectively. [Commissioner of Income Tax, Bombay & Ors. v. Podar Cement P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to arrange their affairs on the basis of the legal position as obtaining in Government policy that is cemented through appropriate fiscal exemptions, a few of which have become a matter of interpretational disputes as in the impugned matter. [R.K. Garg vs Union of India, [(1981) 4 SCC 675]] 9.19 From the issues and judgements detailed above, we find that the appellant in the said cases have not led evidence on facts and important points of law involved so as to prove their eligibility for the exemption. These were not placed before the Coordinate Bench for consideration nor was it independently perceived before arriving at a conclusion on the points of the lis. The Bench thus had decided in favour of the appellant based on the limited issues considered. The decisions are hence felt not to be an authority on the eligibility of microphones for exemption from duty as the decisions came to pass sub silentio. The judgments are hence distinguished. III BATTERY COVER, BACK COVER, CAMERA LENS, FRONT COVER Department's view: 10.0 The following points have been stated by Revenue: (i) The subject goods are parts of general use and made of plastic, like other plates, sheets, films, foi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icles of Section XVI. In the present case, the subject goods which are used in the manufacture of Mobile Phones, become parts of mobile phones classifiable under CTI 8517 7090. Therefore, the said article are specifically covered under Section XVI (Chapter 84 & Chapter 85). Hence, the same are excluded from the purview of Chapter 39. (vii) classification cannot be adopted based on the document issued by any other authority, who is not an expert in customs classification. Ministry of Electronics and Information Technology (MEITY). is not an expert in classification of goods. Hence, without prejudice to any other submissions, the MEITY Notification cannot be the basis for discarding the classification of phone covers under CTI 8517 70 90 of Customs Tariff. (viii) It is a settled position of law that when a tax demand is raised on the Assessee, the burden of proof to establish such a levy is on the Department. (ix) the Principal Bench of the Tribunal in M/s Samsung India Electronics Pvt. Ltd. Vs Principal Commissioner of Customs [Final order No. 51665/2023, dated 20/12/2023] and in the latest order of the Principal Bench in Vivo Mobile India - II (supra) have upheld the classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reclassified based on the exemption notification issued under Section 25 of the Customs Act 1962 or based on any policy of any Ministry. We however observed in our discussions that in a case of ambiguity in understanding a statutory provision or notification, recourse could be had to Government policy like the phased manufacturing policy of Government (PMP), to the extent relevant, in line with the Hon'ble Supreme Courts observations in R.K. Garg (supra). The same would also apply while trying to understand the scope of a classification heading, for "it is difficult to expect the Legislature carving out a classification which may be scientifically perfect or logically complete or which may satisfy the expectations of all concerned". But this is not the same as saying that classification made under a government policy can be transplanted into a decision by the Proper Officer without discussing how the said classification dove tails into the legal requirements of the Customs Tariff. If the classification suggested by any Circular or policy of any Ministry, is found to be not commensurate with the statutory provisions or classification principles as discussed above, the officer cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surements of a particular model of phone cannot be held to be articles of plastic in the nature of other plates, sheets, films, foil, strips of plastic and blocks of regular geometric shape. 10.7 We find that the matter has been discussed elaborately by a coordinate bench of this Tribunal in Vivo Mobile India - II, (supra) dated 09/02/2024. "65. After considering the submissions on both sides on the question of classification, we find that the front cover, middle cover battery cover, back cover, front cover housing, middle cover housing and back cover housing of mobile phones are undisputedly, made of plastic and are parts of mobile phones and are not articles of general use. The case of the Revenue is that even if they become articles ready for use, if they are manufactured from plates, sheets, film foil or strips, whether or not they are printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked they should be classified under CTH 3920 in view of Chapter note 2(s) to Chapter 39. Since they are made of sheets of plastic, printed and surface worked and not further worked, they should be classified under 3920. The case of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to convert it into desired articles. In our considered view, CNC milling also goes beyond mere cutting and surface processing of the sheet. 67. Thus, applying the first Rule of Interpretation, they cannot be classified under CTH 3920- the vapor deposition (lamination) takes them out of the description of CTH 3920 and thermoforming and CNC milling, being processes beyond printing and surface working take them out of the scope of chapter note 2(s) . We also find that a specific entry (parts of mobile phones) prevails over a general entry (articles of plastic) as per Rule 3(a) of Interpretation and the later entry (Chapter 85) in the tariff prevails over the earlier entry (Chapter 39) as per Rule 3(c). However, it is a well settled legal principle that the Interpretative Rules must be applied sequentially. Once Rule 1 decides the classification, it is not even necessary to go through the other Rules of Interpretation such as Rule 3(a) and 3(c) ***** ***** ***** 75. As far as the classification of lenses is concerned, we find no reason to even consider them as being classifiable under 39209999 as plastic sheets, blocks, etc. because, these are not in geometric shapes at all a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove, we cannot decide on a classification that has not been pleaded before us. Once the classification proposed by Revenue is found to be inappropriate, that claimed, while clearing the goods, will sustain even if it may appear to be inappropriate. We cannot also, in our appellate capacity, direct or accord the latitude for invoking Section 11A of Central Excise Act, 1944 by obliteration of the proceedings leading to the impugned order. The mandate of the law pertaining to recovery of duties not paid or short-paid will have to be followed to the letter." The above decision of the Tribunal is based on the view taken by the Hon'ble Supreme Court in the case of Warner Hindustan Limited - (1999) 6 SCC 762 = 1999 (113) E.L.T. 24 (S.C.) wherein the Hon'ble Supreme Court has held as under: "In our opinion, the Tribunal was quite wrong in these circumstances in allowing the appeal of the Excise Authorities and classifying the mint tablets as items of confectionary under Heading 17.04. The correct course for the Tribunal to have followed was to have dismissed the appeal of the Excise Authorities making it clear that it was open to the Excise Authorities to issue a fresh show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by an Appellant when confronted for non-payment of duty. In such a situation the Appellant is not involved in a blame worthy act and no fine can be levied and penalty imposed. No mis-declaration or suppression of facts can be alleged in such a situation. The demand will have to be confined to the normal period with applicable interest. The impugned order stands modified accordingly. (III) BATTERY COVER, BACK COVER, CAMERA LENS, AND FRONT COVER - (Appeal No.C/40391/2020 filed by the assessee and Appeal No. C/40292/2020 filed by the department and cross-objection filed by the assessee in C/Misc./40146/2020 against Order in Original No.58/2020 dated 21.1.2020) The department has not been able to prove its charge of classifying the impugned goods under CTH 3920 9999 and hence the classification of the same under CTH 8517 7090 as done by the Appellant holds good. Since notification no 50/2017 (Sl no 499) as amended is applicable to parts of cellular phones falling under CTH 851770, the impugned goods are eligible for the same. The impugned order hence merits to be set aside. 11.1 The appeals filed by Flextronics and the Department along with the cross objection relating to this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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