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TMI Blog2025 (3) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... n the said notification (at the rate of 15%) provided the knocked down kit of e-bike along with all necessary components, parts or subassemblies also has the disassembled battery pack, the motor controller etc. [sub clause (a)] or the preassembled battery pack, the motor controller etc. [sub clause (b)]. The duty benefit of 15% is available in case of disassembled battery pack and that of 25% is available to preassembled battery pack. For any other form of knocked down kit of e-bike the duty to be paid is at the rate of 50%. Since admittedly the impugned Bill of Entry does not contain the battery pack either disassembled or preassembled a clear understanding of this entry of notification establishes that the benefit of this notification was not available to the appellant. Entry at S.No. 531A of Notification No. 50/2017 dated 30.06.2017 has apparently no ambiguity. If for sake of it, the ambiguity been there, it should be understood in favour of Revenue. The entry cites three situations with three different rates of duties. S.No. 531A(1)(a) required duty at the rate of 15%, 531A(1)(b) requires duty at the rate of 25% and S.No. 531A(2) required duty at the rate of 50%. Apparently an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. dated 30.06.2017 as per entry at S. NO. 531A(1)(b) of the said notification. However, on 100% examination of goods in presence of appellant's Customs House Agent (herein after referred as CHA), the goods were opined to be part of e-bike as the goods were not containing batter/battery pack and electric compressor, hence, were denied to be called as e-bikes in CKD-Kit [HS code 8711 (1) (b)]. It was alleged that the goods imported rather appeared to fall under HS code 8711 (2) which attracts BCD at the rate of 50% on the goods at S.No. 1 and 2 above. The goods at S.No. 3 are admitted to invite duty/BCD at the rate of 15% only. 1.3 On being informed of this mis-declaration the appellant vide letter dated 05.12.2019 agreed to pay duty at the rate of 50% and also agreed for change of CTH of goods. However, vide a subsequent letter dated 10.12.2019, the appellant informed the assessing authority that the duty was paid under protest. Vide a subsequent letter dated 25.01.2020, the appellant requested for speaking order in the matter, however the Deputy Commissioner reassessed the duty at the rate of 50%. The appeal against the said assessment has been rejected vide the impugned order. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms (1)(a) and (1)(b) if this entry shall be available, even if one or more of the components, parts or sub-assemblies required for assembling a complete vehicle are not imported in the kit, provided that the kit as presented, is classifiable under the heading 8711 of the Customs Tariff Act, 1975. Hence, appellant's impugned consignment merit classification under S.No. 531A(1)(b) attracting BCD at the rate of 15%. 3.3 Learned counsel further submitted that even otherwise, as per the report of the examining officer read with packing list, it is abundantly clear that the consignment comprised of parts of e-bike (Other than battery packs and electric compressor), thus, even assuming that the consignment did not merit assessment under S.No. 531(A)(b), the same being parts of e-bike, merited classification under CTH 87106090, which attracts the same rate of BCD i.e. at the rate of 15%. With these submissions, the order under challenge is prayed to be set aside and the appeal is prayed to be allowed. 4. Learned Departmental Representative, at the outset, has reiterated the findings arrived as in the impugned order. It is submitted that there have been several judgments holding that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith an aumiliary motor, with or without side cars, and side cars, if imported,- (1) As a knocked down kit containing all the necessary components, parts or sub-assemblies, for assembling a complete vehicle, with,- (a) disassembled Battery Pack, Motor, Motor Controller, Charger, Power Control Unit, Energy Monitor Contractor, Brake system, Electric Compressor not mounted on chassis; (b) pre-assembled Batter Pack, Motor, Motor Controller, Charger, Power Control Unit, Energy Monitor Contractor, Brake System, Electric compressor not mounted on a chassis or a body assembly (2) in a form other than (1) above 15% 25% 50% - - - - - - 5.3 The bare perusal, in the light of above two admitted facts, makes it clear that the E-Bikes in CKD Condition were eligible for the benefit of customs duty/BCD at the rate as given in the said notification (at the rate of 15%) provided the knocked down kit of e-bike along with all necessary components, parts or subassemblies also has the disassembled battery pack, the motor controller etc. [sub clause (a)] or the preassembled battery pack, the motor controller etc. [sub clause (b)]. The duty benefit of 15% is available in case of disassembled b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... den of proof', the 'onus of proof' shifts to the department to prove assessee's disentitlement to the benefit. The Apex Court Constitution Bench has drawn references to its several pronouncements and international court decisions 5.6 Earlier Hon'ble Supreme court in Hansraj Gordhandas v. H.H. Dave, Asst. Collector of Central Excise & Customs, Surat and Ors. reported as AIR 1970 SC 755 held that the operation of the notifications has to be judged not by the object and the purpose which the rule making authority had in mind, but by the words which it has employed to effectuate the legislative intent. In Tata Iron & Steel Co. Ltd. v. State of Jharkhand reported as (2005) 4 SCC 272 it was held by Hon'ble Apex Court that the principle that in the event of ambiguity with respect to interpretation of provision of fiscal, such construction which favours the assessee may be adopted, would have no application to construction of an exemption notification, as in such a case the burden is upon the assessee to show that he falls within the parameters of exemption notification. The Constitution Bench followed the old decisions : Re, Micklethwait (1885) 11 Ex 452 : Partington v. A.G 9 (1869) LR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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