2017 (1) TMI 472 - AT - Customs

Importer's 'Fused Silica' classification upheld over department's, appeal rejected.

Commissioner of Customs, Nhava Sheva Versus M/s. Vishwa Vishal Engg. Ltd.

The tribunal ruled in favor of the importer's classification of 'Fused Silica' under chapter heading 2505 1019, rejecting the department's classification ... Classification of imported item - Fused Silica - classified under chapter heading 2505 1019 or under 7018 2000 - Held that: - It can be seen from the customs tariff heading the claim of the department that the product merits classification under 7018 2000 is totally misconceived. The said chapter heading is in respect of Glass microsphere not exceeding 1mm in diameter which would be small. In the case in hand, there is nothing on record that the goods imported ‘Fused Silica’ are exceeding 1mm in diameter. Further, we find that by any stretch of imagination, ‘Fused Silica’ cannot be considered as Glass microsphere or for that purpose, as glass beads to be classified under chapter 7018 - the classification declared by chapter heading 2505 1019 is correct. Where department seeks reclassification it is their duty to produce evidence in support of their claim. In the absence of any such evidence from the department side, we are of the view that the classification declared by the respondent is to be accepted. Appeal rejected - decided against Revenue. Issues Involved:Classification of 'Fused Silica' under chapter headings 2505 1019 and 7018 2000; Delay in filing the appeal before the Commissioner (Appeals) and condonation of the delay.Classification Issue:The appeal involved a dispute over the classification of 'Fused Silica'. The importer sought classification under chapter heading 2505 1019, while the department classified it under 7018 2000. The first appellate authority set aside the assessment due to procedural irregularities, as no show-cause notice was issued, no hearing granted, and no speaking order given. The revenue contended that the appeal was filed belatedly, and the importer did not provide evidence supporting the classification under chapter 25. The tribunal found that the department's claim for classification under 7018 2000 was misconceived, as it pertained to glass microspheres not exceeding 1mm in diameter, which did not apply to 'Fused Silica'. The tribunal ruled in favor of the importer's classification under chapter heading 2505 1019 based on the available records.Evidence Requirement:The department argued that the importer did not provide evidence supporting the classification under chapter 25. The tribunal held that the burden of proof for reclassification rested with the department, and in the absence of such evidence, the importer's declared classification should be accepted. Therefore, the tribunal upheld the classification under chapter heading 2505 1019 due to the lack of evidence from the department supporting a different classification.Delay Issue:The department raised an objection regarding the delay in filing the appeal before the Commissioner (Appeals) and the lack of condonation for the delay. However, it was noted that the appellant had applied for condonation of delay before the first appellate authority, and since the matter was disposed of without addressing the delay issue, it was deemed as implicitly condoned. Consequently, the tribunal found that the delay issue did not persist and upheld the impugned order while confirming the classification of the imported product under chapter 2505 1019. As a result, the appeal of the revenue was rejected, and the cross objection was also disposed of accordingly.