TaxTMI 
TaxTMI 
2021 (6) TMI 4
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....D., based in China for the fabrication and delivery of Statue. Owing to the size of the statue, it was not possible to have the statue either commissioned and / or delivered as such and hence the same was fabricated in pieces and was shipped in the form of BronzeCladding Panels (Micro Panels) which were delivered in multiple shipments. The said micro panels were reassembled by way of welding process into macro panels and the statue was finally installed at the relevant site in Gujarat. The statue imported as micro panels but the components that were assembled by way of welding i.e. the goods on which such welding process was carried out. The process of assembly by welding was undertaken by using filler metals (welding electrodes of rods). The filler metal i.e. welding electrodes of rods were separately imported and duly classified under CTH 8311. The appellant classified the statue imported in micro panel under the CTH 8306 2110 which is subject to IGST @ 12%. A Show Cause Notice was issued to the appellant alleging that classification ought to have been made under the CTH 8311 9000 which is subject to 18% IGST. The adjudicating authority has held that the classification under CTH ....
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....ssembled form is to be treated as the item as a whole itself. In the present case it is an undisputed fact that imported goods are components or parts of the main statute itself imported in a completely knockdown (CKD) form and hence the same would be classifiable under CTH 8306. 2.1 Learned Counsel submitted additional submission dated 09.02.2021 after hearing took place on 02.02.2021 wherein it is submitted that it is settled law that onus of establishing that the imported product falls under a particular classification entry is squarely upon the Revenue. In this regard, he placed reliance on the following judgements. • Hindustan Ferrodo Limited 1997 (89) ELT 16 (SC) • HPL Chemicals Limited 2006 (197) ELT 324 (SC) • Swarna Oil Service 2020 TIOL 970 CESTAT-AHM • PEPSICO HOLDINGS PVT. LTD.-2019 (25) GSTL 271 (Tri.-Mum) • WARNER HINDUSTAN LTD.-(1999) 6 SCC 762 2.2 He further submits that even the Authorized Representative in his written submission filed under a cover of letter dated 01.02.2021 has not disputed that the impugned order fails to establish as to how the imported goods are classifiable under CTH 8311 ....
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..... The above decision of the Tribunal is based on Hon'ble Supreme Court Judgment in the case of Warner Hindustan Limited vs CCE 1999 (6) SCC 762. 2.6 Without prejudice to the above, in the course of the personal hearing it was put to the appellant to suggest alternate tariff entry under which imported goods could have been classified. In this regard, without prejudice to the contention that the proceedings initiated against the appellant are unsustainable as the classification proposed by the Revenue under CTH 8311 is absolutely untenable, baseless and bad in law only for the sake of argument, the alternate heading under which the imported goods could be classified by it could be CTH 9703 0010 which covers original sculptures and statutory in matter. As per HS Explanatory Notes to CTH 9703 the said entry inter alia covers original sculptures and statuary, ancient or modern. They may be in any material (stone, reconstituted stone, terracotta, wood, ivory, metal, wax etc.) in the round, in relief or intaglio (statues, busts, figurines, groups, representations of animals, etc. including reliefs for architectural purposes). It is relevant to note that the import duty leviable und....
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....ariff heading is exclusively meant for the goods which are coated or cored with flux material and of a kind used for soldering, brazing, welding or deposition ofmetal or of metal carbides; wire and wire rods of agglomerated metals, base metals powder used for metal spray. Revenue has classified the same under CTH 8311 9000 as others. From the description of the entry it is clear that only those goods which are used for soldering,brazing, welding and similar process are covered in the said entry. In the present case the goods imported by the appellant are not used for any of the said process described in CTH 8311. The goods itself is a part of bronze metal which are piece by piece joined by welding, soldering process achieved the form of Statue of Unity. Therefore, it is clear that the goods imported were not used as a welding material but the goods itself is a end product that is part of statue. As submitted by the appellant for the purpose of joining piece by piece the part of the statue, they have imported separately the welding material. Those welding material are in fact classifiable under CTH 8311 and not the present goods imported by the appellant. The revenue either in the S....
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....ithin Item 22F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed." 7. The similar view was taken by the Apex Court in the case of HPL Chemicals Limited (supra) wherein it was held: "29. This apart, classification of goods is a matter relating to chargeability and the burden of proof is squarely upon the Revenue. If the Department intends to classify the goods under a particular heading or sub-heading different from that claimed by the assessee, the Department has to adduce proper evidence and discharge the burden of proof." 8. Even assuming that the classification resorted by the appellant is incorrect but since the Revenue's claim under CTH 8311 is absolutely incorrect the classification adopted by the appellant will sustain. This has been held by the Tribunal in the case of Pepsico Holding Pvt. Ltd. (supra) as under: 8. In the light of the above, we cannot decide on a classification that has not been pleaded before us. Once the classification proposed by Reve....
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....s are classified under CTH 9703 we are not addressing this issue. However, since the Revenue's claim of classification is held to be incorrect the entire proceeding of the Revenue is quashed. The impugned order is set aside. The appeal is allowed with consequential relief, if any arise, in accordance with law. (Pronounced in the open court on 24.05.2021) ============= Document 1 Document 2 PART II CURRENT AUDIT (A) MAJOR IRREGULARITIES Para 01 Short levy of IGST due to misclassification. As per Customs Tariff Heading 8306, covers, Bells, Gongs and the like, Non-Electric, of Base Metal; Statuettes and other ornaments, of Base Metal; Photograph, picture or similar frames, of base metal; Mirror of base metal . Further 83062110 covers Statuettes. In this Chapter head, basic customs duty is to be levied 10%, SWS @ 10% and IGST 12% (Schedule-11 of Sr. No.189A). As per Customs Tariff Heading 8311, covers, wire rods, tubes, plates, electrodes and similar products of base metal or of metal carbides, coated or cored with flux materials, of kind used for soldering, brazing, welding or deposition of metals or of metal carbides; wire and rods....