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2017 (9) TMI 949
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....he items in the table under Notification No.24/2005, by an amendment issued under Notification No.132/2006, dated 30.12.2006. 4. The petitioner has been importing Multi-Media Projectors of various brands including Sanyo, Panasonic, Hitachi, etc., and selling them in the domestic market by clearing the goods on the basis of the classification under Tariff sub-heading 85286100. But in respect of one of the earliest consignments that the petitioner imported, the Deputy Commissioner of Customs, Air Cargo, passed an order on 27.11.2007 rejecting the claim of the petitioner for classification under Tariff Item No.85286100 and classifying the goods imported by the petitioner under Tariff Item No.85286900. 5. The said Order-in-Original was set aside by the Commissioner Appeals-II and the matter remanded back to the original authority on the sole ground that the technological features of the imported items were not considered by the original authority and that the question as to whether the projectors imported by the petitioner were used solely or principally with ADPS, had to be determined with reference to the technical parameters. 6. After remand, the original authority passed a....
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....d the above submissions. 12. If what the petitioner contends is correct, viz., that the impugned order is nothing but an attempt at over reaching the order of the Tribunal, which is a superior authority, then it is not necessary for this Court exercising jurisdiction under Article 226, to drive the petitioner to the appellate authority for availing the alternative remedy. Therefore we may have to first see (1) what was the dispute that went before CESTAT in the year 2010; (2) what was decided by CESTAT in its order dated 01.09.2010; and (3) what is the nature of the dispute now on hand and whether there are any distinctive features. 13. In order to find an answer to the above questions, we shall go back to the dispute raised in the year 2007, which became the subject matter of a decision of the Tribunal in the year 2010. Before we shall do that, let us first take note of the description of the Chapter Heading and sub-heading of the Tariff Item in question. It reads as follows: 8528 Monitors and projectors, not incorporating television reception apparatus, reception apparatus for television whether or not incorporating radio- broadcast receivers or sound or video recordi....
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....et, which would facilitate even those not having AV port to be put to domestic use, and that therefore, the mere fact that these projectors can be connected to Laptop and used as entertainment devices, would not take the goods out of the classification. 18. After the said order of the original authority passed in favour of the petitioner after remand, was confirmed by the appellate authority, the matter reached the Tribunal at the instance of the revenue. The Tribunal took note of the decision of the Supreme Court in M/s. Mauri Yeast India Pvt. Ltd. v. State of U.P. 2008 (228) ELT 321, and confirmed the orders of the original and appellate authorities on the short ground that no evidence was produced before the lower authorities to indicate the usage of the goods for any other purposes, so as to disqualify them from being classified under Tariff Item No.85286100. In order to appreciate as to how the Tribunal arrived at a conclusion in favour of the assessee, it may be necessary to extract the findings of the CESTAT in paragraphs 8.4 and 8.5 of its order dated 01.09.2010, as follows: 8.4. It is undisputed that the goods imported by the assessee are Projectors. It is also undis....
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.... 8.5. We find that the Honble Supreme Court, in the case of Hindustan Poles Corporation (supra) has held that the residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specified entries. Unless the Department can establish that the goods in question can by no conceivable process of welding be brought under any of the tariff items, resort cannot be had to the residuary item. We find that in the case before us, the Revenue has not established that the goods imported by the assessee were of a category, which cannot be used along with ADPS and nor there is any evidence to indicate that the said goods were and can be used without ADPS. Revenue has failed to produce any evidence before the lower authorities and before us also to indicate that the product merits classification under the residuary sub heading 85286900. 19. From the analytical portion of the order of the CESTAT extracted above, it is clear that the Tribunal was convinced to think (a) that no evidence was produced by the Revenue to come to the conclusion that the goods will come under the residuary classification; (b) that to come within the residuary classification, the go....
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....e pointed out earlier, we are not sitting in appeal over the judgment of CESTAT dated 01.09.2010. The revenue has chosen to accept the said decision and hence it is not up to us to subject the decision to a forensic autopsy. Yet we have recorded the above observations, just for the purpose of showing how far the decision of the Tribunal should be taken to be an intellectual milestone for the adjudicating authority to follow, whenever import of projectors take place. We reiterate that we have made the observations as aforesaid, with respect to the order of the CESTAT dated 01.09.2010, only for the limited purpose of deciding the level of the benchmark that it sets for the adjudicating authorities in respect of future imports. 23. Having done the above exercise, we shall now turn to the current dispute. Insofar as the current dispute is concerned, it is seen from the impugned order that the subject matter of the impugned order was the import of projectors made by the petitioner during the period from November 2011 to September 2016. During this period from November 2011 to September 2016, the petitioner had imported various models of projectors of Hitachi, Panasonic, Sanyo etc., c....
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....he petitioner are protected by the findings recorded by the CESTAT in its order dated 01.09.2010. 24. We must keep in mind the essential difference between a generic term and descriptive term. If description of Tariff Item No.85286100 is just projectors, then it is generic. But the moment the description qualifies the generic term projectors with certain attributes depending upon their use, then the entry ceases to be generic but becomes descriptive. What is included as Tariff Item No.85286100 are only projectors of a kind solely or principally used in an ADPS. The use of the words of a kind qualifies the goods that would come within the entry. In other words, the entry under Tariff Item No.85286100 is applicable only to those genre of projectors that fall within the description of a kind solely or principally used in an Automatic Data Processing System. 25. Therefore, the question as to whether the projectors imported under the bill of entry dated 24.09.2007, about which the adjudication reached finality before the CESTAT, are exactly the same as the projectors imported during the period from 2011-2016, which form the subject matter of the present dispute, is a question of f....
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....e evidence in the form of trade opinion and practice in favour of CTH 85286900. 37.4 Thus, clearly, the earlier decision by the Honble CESTAT in the assessees case is distinguishable, - not just in terms of the differences in goods but also in terms of the nature of evidence (about the goods being of a kind equally usable with ADPS and non-ADPS) and the fact of the goods in the present case being (unlike in the earlier case as found by Honble CESTAT) very much usable without ADPS. Therefore, applying the ratio laid down by the Honble Supreme Court in the Alnoori case cited supra, I hold that the said earlier CESTAT decision is not applicable to the case before me. 28. When the very nature of the entry under Chapter Heading and sub-heading warrants an enquiry in respect of every import, due to the use of the words of a kind solely or principally used in ADPS, the petitioner cannot cite the CESTAT order as a precedent, except in cases where the specification of the goods imported every time are of the same specification as the goods imported in 2007 that became the subject matter of the order of the CESTAT dated 01.09.2010. 29. Therefore, we are of the considered view that t....