TaxTMI 
TaxTMI 
TaxTMI 
2018 (2) TMI 1269
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....s were not meant to be solely or principally with Automatic Data Processing System/computers and were equally usable with other devices like USB, VCR, DVD players etc, show cause notice dated 08.11.2016 was issued by DRI for the duty demand of Rs. 4,17,75,982/- for the imports during the period November, 2011 to September, 2016, stating classification of the imports were wrong and the correct classification should have been 85286900, wherein benefit of exemption under Notification No. 24/2005-Cus was not available. The appellant contested the show cause notice on merits as well as on limitation. The Adjudicating Authority after following due process of law, confirmed the demands raised for the normal period and dropped the proceedings for the demand of extended period. The Adjudicating Authority effectively confirmed the demand of Rs. 1,58,43,056/- along with interest and did not impose any penalties. Aggrieved by such an order, an appeal is preferred before the Tribunal by the importer. Revenue is not in appeal against the order that dropped the demand for extended period. 3. Learned Counsel Shri V.K. Jain appearing on behalf of the appellant takes the bench through the entire re....
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.... correlating to the technical differences between projectors of the kind imported by them and the projectors which are used along with Home Theatres have not been properly appreciated or dealt with by the respondent; due to technological advancement, the Contrast Ratio in both the categories of projectors viz. business and education on the one hand and Home Theatre and Entertainment on the other, had gone up considerably in the past 10 years, which fact has not been considered by the Adjudicating Authority hence the conclusion therein is incorrect. It is his further submission that the Revenue had not led any credible evidence in support of the classification sought to be adopted by them, it would be required for departing from the earlier view held by this Tribunal and accepted by the Revenue. It is the submission that evidence in the form of statements of representatives of other importers of projectors is totally irrelevant as the practice followed by other importers is of no consequence and reliance placed on the statement of the representative of Hitachi is concerned, most of the Models of the Projectors are different from those imported by the appellant. Further the statement....
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....s. State of Manipur [2012 (286) ELT 485 (SC)] Real Optical Co. Vs. Appellate Collector of Customs [2001 (129) ELT 7 (SC)] Collector of Central Excise Vs. Fusebase Eltoto Ltd., [1993 (67) ELT 30 (SC)] Plasmac Machine Mfg. Co. Pvt. Ltd., Vs. Collector of Central Excise [1991 (51) ELT 161 (SC)] Pioneer Embroideries Ltd., Vs. Commissioner of Customs [2015 (322) ELT 602 (S.C.)] Dunlop India Ltd., & MRF Ltd., Vs. Union of India & others [1983 (13) ELT 1566 (SC.)] Commissioner of C.Ex., Hyderabad-III Vs. Sanghi Polyesters Ltd., [2003 (155) ELT 381 (Tri.-Bang.)] ESPI Industries and Chemicals Pvt. Ltd., Vs. Collector of C.Ex., Hyderabad [1996 (82) ELT 444 (SC)] Peshawar Soap & Chem. Works Vs. Commissioner of C. Ex., Chandigarh [2001 9138) ELT 855 (Tri.-Del.)] Commissioner of Central Excise, Calcutta-I Vs. ASCU Ltd., [2006 (203) ELT 39 (Tri.-Kolkata)] Collector of C.Ex., Calcutta Vs. Alnoori Tobacco Products [2004 (170) ELT 135 (SC)] 5. We considered the submissions made by both sides and perused the records. 6. The short issue to be decided is whether the projectors imported by the appellant during the period November 2014 November 2016 were entitled for the benefit o....
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....s submitted that the technical features and differences that exist between the two kinds of projectors were first explained by the appellants Managing Director, Shri Sandip Jain, in his statement recorded in the course of investigations. Our attention was invited to the answers given by Shri Sandip Jain in response to question No.6 to 10 which are to the effect that the projectors imported by the appellant were meant and intended to be used principally in ADPS and not for other applications such as for home theatres or for entertainment applications. Shri Sandip Jain categorically asserted that the projectors in question were not equally usable with ADPS or Non ADPS applications. The presence of multiple ports in these projectors for enabling their connection with Non-ADPS equipments were explained by pointing out that though these ports enabled the projectors to be used with non ADPS equipments, the principal usage of the projectors continued to be that with ADPS equipments. Some brochures were also referred to in the said statement to support the claim that the projectors imported were data projectors meant for use in classrooms, meeting rooms and seminar halls for displaying ima....
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.... on the internet available in this office]. 26.3 With reference to page 48, he pointed out the following 12 features which are not there in the ADPS projectors: Dynamic Mode, Living Mode, Cinema Mode, 3D Cinema, High Refresh Rate, High Contrast Ratio, Wide-range Connectivity, Flexible Conversion from 2D to 3D, PC-free Slideshow, availability of MHL Port, Wireless Transmission and Frame Interpolation (2D/3D). Shri Jain mentioned that while the ADPS projectors may have some of the above features but those would be of a far lower quality/degree/specifications as compared to the Home Theatre projectors. 26.4 With reference to page 52, he referred to a feature called Frame Interpolation wherein two images are shown of a cyclist of which one is blurred and the other is not. It is his claim that the ADPS projectors will have the blurred quality i.e., image of an inferior quality for a moving image. On a query as to whether with reference to the brochures for the ADPS projectors filed by them, he can show as to whether those brochures referred to the deficiency such as blurred image quality, Shri Jain mentioned that as these kind of projectors do not have those features hence the catal....
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.... the appellant had made categorical assertions about the technical differences and had also backed them up by producing brochures of different manufacturers, the Commissioner was to deal with this crucial submission. The initial burden of proof that lay upon the importer was discharged, and the burden then shifted upon the Revenue to disprove or rebutt the assertions and submissions made by the appellant. The order miserably fails to address the specific points made by the appellant with regard to technical differences between projectors of different types, and is thus totally unsustainable. 9. The impugned order records a finding that since the projectors imported by the appellant were equallyusable with ADPS equipments and non ADPS equipments, they could not be regarded as projectors of a kind principally used in ADPS of the kind covered under heading 85286100. The finding that the projectors were equally usable with ADPS and non ADPS equipments is based primarily on the statement of Shri Lalit Kumar Singh, Assistant Manager (Services) of Hitachi (India). The Notice also relies upon the statement of one Shri GiriGanesan, Senior Manager (Imports) of Panasonic India. Shri Lalit Ku....
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.... stand taken by a particular importer cannot be considered to be the sole basis for determining classification. In cases where the classification claimed by different importers are different, the Customs usually take the opinion of technical expert or an expert body. In the present case, the technical differences that exist between the projectors of the two kinds had been explained in detail not only in the statements recorded under section 108, but also thereafter in the course of personal hearing before the Commissioner, and supporting evidence by way of brochures was also placed on record before the Commissioner. In our view, the appellant had adequately discharged the initial burden of proof which lay upon it. The burden of proof then shifted upon the Revenue to prove that the technical differences cited were either irrelevant or non-existent. No such attempt has been made by the revenue either in the Show Cause Notice or in the impugned order. We therefore hold that the revenue has failed to produce any evidence to rebut the appellants contention or to disprove the evidence produced by the appellant. 11. The only discussion on technical features is found in para 36 of the ord....
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....eference, we extract the said para 36.4 below: 36.4 Some of their other features are as under:- Feature DX300ES X3041WNEF(H) X3041WNEF X3030WNEF Contrast 2500 : 1 10000 : 1 10000 : 1 10000 : 1 Aspect Ratio 16 : 9 Compatible 16 : 9/16 : 10 Compatible 16 : 9/16 : 10 Compatible 16 : 9/16 : 10 Compatible HDMI Port Yes Yes Yes Yes From the above, it can be seen that the impugned goods are having high contrast ratio going to the extent of 10000 : 1. They also have 16 : 9 aspect ratio, and have HDMI ports. I find that the relevance of these features arises due to the fact that in the earlier case (on which the noticees have relied) it was their own submission before the adjudicating authority that the goods imported in that case could not fall under 85286900 as those goods did not have some advancedfeatures as under (extract from page 2 of the Order dated 27.11.2007):- Specification Computer Projectors Multimedia Home Theatre Projectors Contrast 600 : 1 3500 : 1 or more Aspect Ratio 4 : 3 16 : 9 HDMI Port No Yes Thus, I find that now the impugned goods covered by the SCN before me admittedly have the very same featur....
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....e demand raised in the Notice is barred by limitation. The Commissioner has held in the order that the larger period of limitation available under the proviso to section 28 is not invokable in the present case as there was no deliberate suppression or misstatement. He has therefore confined the demand for a period of the normal period of limitation. He has however applied two years to be the normal period of limitation and, since the Show Cause Notice was issued on 8.11.2014, all imports made after 8.11.2014 have been held to be falling within the normal period of limitation. The appellant has contested this approach by pointing out that demands for the period from 8.11.2014 till 13.5.2016 was time barred and therefore could not have been the subject matter of the recovery proceedings. It was pointed out that the normal period of limitation was enhanced from one year to two years with effect from 14.5.2016. This was done by an amendment made to the Customs Act by Finance Act, 2016. The position thus was that as on 13.5.2016 i.e. prior to the Finance Act, 2016 coming into force, demand for the period prior to 13.5.2015 had already become barred by limitation. This amendment made was....