TaxTMI 
TaxTMI 
2019 (1) TMI 705
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....ger falling under the CFSTH 8504 40 30 of the Central Excise Tariff Act, 1986. 3. It is argued by Ld. Advocate, on behalf of the respondent that the product manufactured by them is 'power bank' which is used to charge mobile phones as 'mobile battery charger', without use of separate charger. The 'power bank' is primarily used to charge the battery of mobile phone and is different from accumulator has held in the impugned order. It was further submitted that the 'power bank' primarily acts as the charger for mobile handsets and hence the respondent is entitled for Exemption Notification No. 12/2012-Cus, which exempts the part or component as classifiable in any chapter for manufacture of battery charger of a mobile handsets. Ld. Advocate also submitted that the Ld. Commissioner (Appeal), in his order has rightly held that benefit of aforesaid Notification is available to the power bank as mobile battery charger. It was further submitted that the Commissioner(Appeal) has rightly ignored the Ministry's clarification issued to the respondent vide letter F. No. 354/29/2017-TRU dated 26/4/2017, wherein it was clarified that the benefit of impugned Notification is not available to the a....
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....eard and decided by one of the members of the Board. He appears to have proceeded on the basis that in view of the directions given by the Board nothing more need be said as to the point in dispute. It is regrettable that when administrative officers are entrusted with quasi-judicial functions, often times they are unable to keep aside administrative considerations while discharging quasi-judicial functions. This Court as well as the High Courts have repeatedly tried to impress upon them that their two functions are separate; while functioning as quasi-judicial officers they should not allow their judgments to be influenced by administrative considerations or by the instructions or directions given by their superiors. In this case both the Collector as well as the Central Government have ignored the line that demarcates their administrative duties and their judicial functions." 5. In this case the clarification was not issued to the Adjudicating Authority, but to the respondent, which was never accepted by them. Therefore, it was imperative on the part of Adjudicating Authority to have considered the merits of the case rather than going by clarification issued to the respondent wh....
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....by the Ld. Adjudicating Authority on the basis of classification issued (supra) and hence the denial of Exemption Notification as above. In view of above, he also submitted that the impugned order passed by the Commissioner (Appeal) has considered the relevant facts and came to the conclusion that the benefit of the Notification above is applicable to the respondent, under the notification(supra) 8. Ld. AR on behalf of the Revenue submits that in this case the Board has clarified the classification of the power bank vide the Ministry's letter dated 26.04.2017(supra) and in view of above there cannot be a case for different classification of the power bank by the respondent. The Commissioner (Appeal) in the impugned order had not considered the above clarification and decided the matter ignoring the said letter issued to the respondent. Therefore, he submits that the impugned order to be set aside and the order of the original Adjudicating Authority to be affirmed the appeal. 9. We have gone through the submission made by the Ld. Advocate on behalf of the respondent and Ld. AR on behalf of the Revenue. 10. We have also considered the various arguments made by the appellant Revenu....
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....ated 17.03.2012) for use in the manufacture of Portable Mobile Battery Chargers. Thereafter vide various applications filed during Decembe"2015 to January 2016, the appellant have availed the said exemption. To avoid any misuse of exemption, the Range Superintendent has been directed to cheek the use of inputs and the nature of finished products. The said Superintendent vide letter dated 27.01.2016 has reported that the Portable mobile battery charger appears to be classifiable as 'accumulator'. On the basis of this report, the Assistant Commissioner, on the reasonable belief' that the said exemption is not admissible, has directed the appellant to deposit the differential duty of Rs. 1,61,92,8441 (the Customs duty payable on the said inputs/parts as per normal rates less the exempted duty actually paid at the time of import of said goods). Against the said letter, the appellant have moved to the Hon'ble High Court Delhi. The High Court. vide order dated 02.11.2016, has directed the respondent (Revenue) to issue the SCN to the appellant and after hearing the appellant, to pass the final order within three months. Complying with the said directions, the SCN dated 16.....
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....larified that the power banks are accumulators are as such, the exemption under Notification 12/2012-Cus dated 17.3.2012 is not available to these power banks. Upon analysis of these findings in the light of facts of case and relevant statutory provisions/judgments, I observe that the Hon'ble Authority for Advance Ruling', in the case of delta Power (supra), has never given ay ruling regarding classification of power banks. Hence, the reliance on this judgment is totally misplaced. Regarding second finding, I note that there is no difference in the portable mobile charger and a power bank. In fact, a portable mobile charger is commercially known as „power bank‟ and this fact is also evident from the website of various e-commerce companies. Regarding third point, with regard to the clarification given by the CBEC, I hold that the same cannot be applied as a ruling by the Adjudication Authority, particularly in adjudication matters. He is bound to give his own independent findings on the basis of material on record. (iv) To resolve the moot point of dispute, it would be prudent to have a look at the use, which is undisputed by the Adjudicating Authority, of the power ban....
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....harger (c) inductive charger (d) intelligent charger (e) motion powered charger (f) pulse charger (g) solar charger (h) timer based charger (i) trickle charger (j) universal battery charger (k) USB-based charger (l) power bank. So, the power bank is one of the various specified categories of battery chargers. Moreover, an accumulator can never act as a mobile battery charger without the use of a separate charger whereas the power bank is primarily used to charge the mobile batteries. This is the basic function that differentiate a power bank from an accumulator. The Adjudicating Authority has not appreciated the facts that (a) it is the storage batteries inbuilt in the power banks, and not the power banks, which are classifiable as accumulators (b) the primacy function of a power bank is to charge the mobile batteries. (v) The trade parlance theory/common parlance theory is a salutary principle to decide the disputes of classification. In para 75 of the 0-1-0, the Adjudicating Authority has admitted that the primary, use of the power banks is to charge the batteries of mobile phones/mobile tablets. I note that in Atul Glass Industries Ltd. Vs CCE [1986 (25) ELT 473 (Sc)], the Hon....
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....k without worrying the damage to the battery due to „over-charging‟ as the power bank has the feature of auto turning -of the charging process once the mobile battery is fully charged". 15. Therefore, Ld. Commissioner(Appeal) concluded that the 'power bank' is not an accessory of the mobile phone and on that ground that the power bank is not sold in retail market along with package of mobile phones and power bank is separate electric item having independent identity in the market. Mobile phone does not depend on a power bank in order to function and being manufactured and marketed without power bank. Ld. Commissioner(Appeal) has thereafter held that the opinion and contention is acceptable in view of judgments in the case of State of Punjab vs. Nokia India, wherein in the Supreme Court has held that portable charger of mobile phone is an accessory of mobile. 16. We do not find any infirmity in the order of Commissioner in view of his reasonable findings. Further, we find that in this case although the Ministry has issued the clarification to the Respondent regarding the classification of 'power bank' as the 'accumulator' but the same cannot be treated as a circular is....