2015 (12) TMI 654 - AT - Customs

Imported Goods Classification Dispute Remand for CVD Liability Examination

Commissioner of Customs (Port), Kolkata Versus M/s Sigma Construction

The case involved a dispute over the classification of imported goods as cable jointing kits under CTH/CETH85359090. The Commissioner (A) Kolkata remanded ... Levy of CVD - whether or not goods imported by the Respondent under B/E No. 441168 dt 11/11/08 under RMS procedure, were cable Jointing kits not leviable to CVD as per CBEC Circular No. 583/20/2001-CX dt 20/08/2001 issued from F. No. 151/18/96-Ex-4 - Held that:- First appellate authority has held that the goods imported were described as cable jointing kits which is being contested by the Revenue that description in the B/E was given on the basis of product code & not as cable jointing kit. It is also the case of the Revenue in the grounds of appeal that classification of the imported goods was claimed by the Respondent under CTH/CETH 85359090 & not as cable Jointing kit under CTH/CETH 8547 - Respondent had to justify with documentary evidence that the goods imported were in fact 'Cable Jointing kit' falling under CTH / CETA 85.47. After deciding the classification of the imported goods, it is also required to be examined whether the ratio of case law M/S XL Telecom Ltd & others decided by Andhra Pradesh High court and the case law of M/s REPL & others dismissal by Supreme Court will be applicable to imported goods. Even if placing all the imported articles in one kit (as 'Cable jointing kits') does not amount to manufacture, whether the ratio laid down by the courts debar charging of CVD on individual articles as such when imported. In the interest of Justice the order passed by the first appellate authority is set aside and the case is required to be remanded back to the assessing officer as no speaking assessment order has been passed by the Lower authority on the issue of classification of imported goods. - Matter remanded back - Decided in favour of Revenue. Issues Involved:Classification of imported goods under CTH/CETH85359090, applicability of CBEC Circular No. 583/20/2001-CX, remand by Commissioner (A) Kolkata for examination of CVD leviability on goods described in B/E as cable jointing kits, dispute over classification, necessity of physical examination of goods, importer's right to seek modification of classification under RMS Clearances, requirement for documentary evidence to justify classification as cable jointing kits, relevance of case laws M/S XL Telecom Ltd and M/s REPL, need for a reasoned speaking order on classification before exemption from CVD, opportunity for personal hearing in remand proceedings.Detailed Analysis:1. The Revenue filed an appeal against the Order-in-Appeal (OIA) passed by the Commissioner (A) Kolkata remanding the matter to the Adjudicating authority for examining the levy of Countervailing Duty (CVD) on goods imported under B/E No. 441168 dt 11/11/08 classified under CTH/CETH85359090, claimed by the importer as cable jointing kits, based on CBEC Circular No. 583/20/2001-CX.2. The Revenue argued that the goods were not declared as cable jointing kits in the B/E, and physical examination was not conducted, questioning the remand for verification by the Commissioner (A). Importer's failure to request a classification amendment and the absence of goods for examination were highlighted.3. The Respondent contended that an importer can contest initial classification under RMS Clearances, even without physical goods, by providing catalogues and literature to establish the imported items as cable jointing kits, subject to the CBEC Circular.4. The main issue revolved around whether the imported goods were correctly classified as cable jointing kits under CTH/CETH85359090, disputed by the Revenue based on product code and classification claimed by the importer. The Commissioner (A) remanded the case for fresh examination to determine CVD liability based on the nature of the goods imported.5. The Tribunal observed discrepancies in the description of the imported goods in the B/E and emphasized the need for documentary evidence to prove the classification as cable jointing kits. The relevance of case laws and the requirement for a reasoned speaking order on classification before addressing CVD exemption were highlighted.6. Consequently, the case was remanded to the assessing officer for a detailed classification decision before considering CVD exemption, ensuring the Respondent's right to a personal hearing in the remand proceedings.7. The appeal by the Revenue was allowed for remand to the assessing officer, and the stay application was disposed of, emphasizing the importance of a thorough classification determination and procedural fairness in the adjudication process.