TaxTMI 
TaxTMI 
2021 (2) TMI 565
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....ge Lighting Equipment) and LED Balls of different sizes, having declared value of Rs. 21,19,307/- and Rs. 1,73.398/-. They claimed the classification of winches under Custom Tariff Heading 84253100 and those of LED Ball under 85395000. 2.2 On examination of the goods, Docks officer, found that winches are to be specifically used in kinetic lights with sole function as stage lighting equipment. Thus the goods were correctly classifiable under the heading 94054090 attracting Custom Duty of (BCD-20%+SCW-10%+IGST-12%) against (BCD-7.5%+SCW-10%+IGST-18%) as claimed by the appellant. Thus the matter was referred by the dock officers to the group for determination of the correct classification and applicable duty. 2.3 After consideration of the submissions made by the Appellant, Assistant Commissioner vide his order in original held as follows: "25. In view of the above, I pass the following order: i) I order for rejection of classification of goods under CTH 84253100 and re-classify the goods under CTH 94054090 with duty structure of (BCD 20% + SWS10% + IGST - 12%). ii) I order for absolute confiscation of the offending goods menti....
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.... has held that common parlance or trade parlance test to be basis for the determination of classification. He relies upon several other decisions of the various authorities expounding the same principle. • Since Winch is separate entity which is not covered under heading "LED driver and MPCB" of 94054090, it will get classified under Heading 84253100. • Even by application of General Notes for Parts to Section XVI these goods will get classified under heading 84253100 only. • Further in terms of the law laid down in the following decisions also the imported goods will get classified under the heading 84253100 • Simplex Mills Co. Ltd [2005 (181) ELT 0345 (SC)] • Belmarks Pvt ltd {2003 (158) ELT 295 (T-Del)] • Hitachi Home & Life Solution Ltd [2012 (285) ELT 504 (T-Mum)] • Singhla Sales Corporation Pvt Ltd {2002 (141) ELT 806 (T-Del)] • M P Dyechen Industries {2002 (139) ELT 656 (T-Del)] • Burden is on the department to prove that goods get classified in the particular heading • Hindustan Lever Ltd {2015 (323) ELT 209 (SC)] • HPL Chemical Ltd ....
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....basis of its use for industrial purpose. Thus the importers contention that Winch imported by them does not require BIS registration is devoid of merit. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of argument of appeals. In the matter the following questions have been raised for our determination. (i) Correct Classification of the imported good under the heading 84253100 or 94054090? (ii) Whether the goods are required to be compulsorily registered with BIS, in view of the provision of the Electronics and IT Goods (Requirements for Compulsory Registration) Order, 2012? (iii) Goods liable for confiscation and penalty on the importer justified? Correct Classification of the imported good under the heading 84253100 or 94054090? 4.2 Commissioner appeal has in para 8 of his order referred to the Catalogue of the product and observed as follows: "8. The appellant along with the appeal has submitted Kinetic Lighting User Manual. From careful perusal of the same, it is evident this LED Winch is the main equipment of the whole Kinetic Lighting System. The other parts/accessories ....
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.... for raising vehicles: ------ - Winches, capstans 8425.31 - - Powered by electric motor 8425.39 - - Other - Jacks, hoists of a kind used for raising vehicles: 8425.49 - - Other This heading covers simple lifting or handling equipment. The provisions of Explanatory Note to heading 84.26 apply, mutatis mutandis, to the equipment of this heading insofar as they concern self propelled and other "mobile" machines, multifunction machines and lifting, loading, handling, etc., machines intended for incorporation in other machines or for mounting on transport vehicles or vessels of Section XVII. However, if a winch is the normal working tool of a tractor, the complete machine (tractor and winch) is classifiable in heading 87.01. The heading covers : 1. PULLEY TACKLE AND HOISTS OTHER THAN SKIP HOISTS (II) WINCHES AND CAPSTANS Winches consist of hand-operated or power-driven horizontal ratchet drums around which the cable is wound. Capstans are similar, but the drum is vertical. This group includes: (1) Marine winches and ca....
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....assification of the impugned imported goods should be based on the main function of the item and not its ancillary function. 4.5 The text of the Chartered Engineer Certificate dated 17th October 2019, is reproduced below: "At the request of M/s. Star Dimensions India Pvt Ltd. 303 Mathuria Apts Sir M V Rd, Andheri East, Mumbai - 400069, Maharashtra, India, our independent Chartered Engineer along with Shri. Praveen Kumar E.O Docks, Indian Customs, JNCH, inspected the following Samples "Winch (Stage Lighting Equipment)" at Sea Bird CFS, JNCH, Nhava Sheva on 10/10/2019. Purpose of this inspection was to verify, assess and give opinion on the samples inspected on following points Viz: a) To inspect & appraise the veracity of the Samples inspected in the 'as is where is condition': On Physical & Visual verifications and examinations of the Samples inspected the following details were noticed. S No Description CE's Remark 1 Winch (Stage Lighting Equipment) • DMX Winch. • Used in stage lig....
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....g further handling and conveyance of the hot rolled long sheet possible and for feeding their cold rolling mill, we have no doubt in our mind that the principal function of the blocker is coiling. The coiling operation cannot be called mere handling. In the context of the appellants' plant, it is an essential process of manufacture in the course of production of cold rolled sheets and strips from aluminium ingots. We also agree with the Department's representative that none of the machines enumerated in Heading 84.22 alter the form or shape of the material; their function is confined to lifting, handling, loading, unloading and conveying. Since we hold that the principal function of the blocker is coiling, that is other than mere handling, it cannot be classified under Heading 84.22. ......." 4.7 In case of R C Projects & Systems Ltd [2005 (183) ELT 319 (T-Bang)] again reiterating the same principles following was held: "The contention of the appellants is that the item is required to be considered as parts of the machinery and draw reference to three judgments of the Tribunal. On our consideration, we find that in the case of CCE v. Conveyor Equipments Pvt. Ltd. ....
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.... of the appellants for classifying the Electric Control panels as parts of machinery is rejected and the impugned order is upheld. There is no merit in this appeal and the same is rejected." 4.8 In both the decisions referred above tribunal has applied the essential character test to reject the claim of classification as handling or lifting equipments. In the present case, both the authorities below have determined the essential character of the impugned goods as lighting fixture after considering the product catalogue (literature) and the Chartered Engineer Certificate. Appellants have not produced anything before us to disturb the said findings of lower authority, and establish that impugned goods are simple handling/ lifting equipment to merit classification under heading 84253100. 4.9 Heading 94054090 of reads as under- 9405 LAMPS AND LIGHTING FITTINGS INCLUDING SEARCHLIGHTS AND SPOTLIGHTS AND PARTS THEREOF, NOT ELSEWHERE SPECIFIED OR INCLUDED; .... 9405 40 - Other electric lamps and lighting fittings : 9405 40 10 --- Searchlights and sportlights 9405 40 90 --- Other When both authorities hav....
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.... for industrial or general purpose. Thus the appellant's contention that Winch imported by them does not require BIS registration is devoid of Merits." 4.11 The Public Notice No 136/2018 dated 08.10.2018 issued by the Nhava Sheva Customs, states at para 2 as follows: "2. Ministry of Electronics & Information Technology (MeitY) has notified RCR Order on 3 Oct 2012. The Order since then, has been progressively applied to increasing product categories of Electronic Goods. Presently, it covers electronic / IT goods as available on the BIS website at https://www.crsbis.in/BIS/products.do". 4.12 As per the Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012, 2. Definitions (1) In this Order, unless the context otherwise requires, c. "Goods" means the Electronic and Information Technology goods specified in the column (2) of the Schedule; e. "Schedule" means schedule annexed to this order; g. "Specified Standard" in relation Electronic and Information Technology goods means the Indian Standard as specified in the column (3) of....
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....ng Machines/Postage Machines/Franking Machines IS 13252(Part 1):2010* 21 Power Banks For Use In Portable Applications IS 13252(Part 1):2010* 22 Smart Card Reader IS 13252(Part 1):2010* 23 Mobile Phones IS 13252(Part 1):2010* 24 Self-Ballasted Led Lamps For General Lighting Services IS 16102(Part 1):2012* 25 Dc Or Ac Supplied Electronic Control gear For Led Modules IS 15885(Part 2/Sec 13):2012* 26 Power Adaptors For Audio, Video & Similar Electronic Apparatus IS 616:2010* 27 Power Adaptors For It Equipments IS 13252(Part 1):2010* 28 Fixed General Purpose Led Luminaries IS 10322(Part 5/Sec 1):2012* 29 Ups/Invertors Of Rating <= 5kva IS 16242(Part 1):2014* 30 Sealed Secondary Cells/Batteries Containing Alkaline Or Other NonAcid Electrolytes For Use In Portable Applications IS 16046:2015* 31 Indian Language Support For Mobile Phone Handsets IS 16333 (Part 3) : 2016* 32 Recessed Led Luminarie....
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.... Goods (Requirements for Compulsory Registration) Order 2012. In absence of any determination of the Indian Standard, which would be applicable in respect of these goods the impugned order holding that goods have been imported in contravention of the provisions of the Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012, cannot be sustained. In our view the order holding that the goods are prohibited and liable for absolute confiscation needs to be reconsidered by the authorities below in terms of the provisions of the Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012. Hence the matter needs to be remanded back to the original authority for determination of Indian Standard as per the column (3) of the Schedule to the Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012. Are Goods liable for confiscation and penalty on the importer justified? 4.14 For holding goods liable for confiscation, Assistant Commissioner, has recorded reasons as follows: "21. The Hon'ble Supreme Court in the case of Om Prakash Bhatia (2003 (155) ELT 423 (SC)] has held that if the importation and exportat....