TaxTMI 
TaxTMI 
2018 (5) TMI 1306
X X X X Extracts X X X X
X X X X Extracts X X X X
.... projectors imported by the two appellants were meant for supply to Educational Institutions (in the case of M/s Acer India Pvt. Ltd.) and were warranty replacements (in the case of Dell India Pvt. Ltd.). In respect of such goods, Revenue was of the view that the CVD is required to be paid on the basis of Section 4A of the Central Excise Act 1944, on the basis of the MRP at which such goods are sold. The appellants had inter alia cleared such goods on payment of CVD on transaction value. The Special Additional Duty of Customs. was also required to be paid. The Department was of the view that the imported goods have features which are in addition to those which are normally found in goods covered under 85286100 and accordingly ordered classification of the goods under 85286900 and denied the benefit of the exemption notifications claimed by the appellant. This resulted in demand for Customs duty during the disputed period. Aggrieved by the decision, the present appeals have been filed. 2. With the above background we have heard Mr. Shivadass, learned advocate appearing for the appellant as well as Dr. Ezhilmathi, representing the Revenue. 3. The argumen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Educational Institutions will be covered within the provisions of Rule 2A of the above Rules wherein exclusion has been provided to institutional consumers. Goods supplied as warranty replacements (in respect of M/s Dell India Pvt. Ltd,) also will not fall within the purview of Standards of Weights and Measures Rules as per Rule 3 ibid in which the provisions of the Chapter has been made applicable only to packages in India for retail sale. The learned counsel further submitted that in respect of goods imported for supply as warranty replacements, there is no sale involved in the transaction and hence there will be no requirement of either affixing MRP or payment of CVD under Section 4A. In respect of such goods also the CVD on transaction value stands paid already. In this connection, he also relied on the decision of the Tribunal in the case of Bharti Telemedia Ltd. Vs. CC, Nhava Sheva reported in 2016 (331) E.L,T. 138 (Tri.-Mum.). 4. The learned DR justified the impugned order. She submitted that since the goods are not solely meant for use in an Automatic Data Processing System, the classification adopted by Revenue under 85286900 may be sustained. 5. &....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e subject issue is covered by the CESTAT, Chennai decision in the case of Acer India Pvt. Ltd. vs. CC, Chennai reported in 2010 TIOL 401 CESTAT MAD. In this regard, the CESTAT s observations given in para 3 in the said decision are as under :- " After hearing both sides and perusal of case records, we find that as per Chapter Note 5 (C) and (D) to Chapter 84 the monitors and projectors, not incorporating television reception apparatus are excluded from being classified under Heading 8471 even though they are of the kind solely or principally used in an automatic data processing system. We also find that projectors of a kind solely or principally used in an automatic data processing system of Heading 8471 are classified under sub-heading 8528.61. In fact, the impugned goods have been classified by the original authority in respect of 12 out of 13 cases under Heading residual category 8528.69. The impugned exemption Notification No. 24/2005 dated 01/03/2005 as amended during the relevant period exempts all goods falling under sub-heading 8528.61. The description under the sub-heading 8528.61 uses the expression of a kind solely or principally used . From the arguments advanced bef....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y in para 35.4 has taken the view that the RSP has to be declared not only on the packages which are for sale but also those packages which are for distribution or delivery. We note that in the Bills of Entry filed by both the appellants are for clearance of projectors as warranty replacement. It has been specifically declared that such goods are not meant for sale but are meant for such supply. In res3ect of such goods, which are not sold, there is no requirement under the Standards of Weights and Measures Rules or the successor Rules of 2011 to declare the MRP. Further in the case of Bharti Telemedia (supra) the Tribunal had occasion to consider a similar issue in respect of set top boxes meant for supply to the customers as part of the cable TV service. The Tribunal observed as follows: 9.1 Another argument put forth by Revenue is that because the transaction between the service provider and the customer has a warranty clause, therefore it can be said that the goods have been sold and the property does not remain with the service provider. This argument does not appeal to us because warranty is normally provided in the delivery of services too and not in the delive....