TaxTMI 
TaxTMI 
2022 (9) TMI 690
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the show cause notice: (i) The impugned goods i.e. Projectors Imported by M/s. Benq India Pvt. Ltd. under the Bills of Entry, as detailed in the Annexures-A, B,C,D,E,F,and G of the show cause notice are ordered to be re-assessed by classifying them under CTH 85286900; (ii) The seized goods mentioned in Table-III of the show cause notice, having total value of Rs. 1,08,52,755/- (Rupees One Crore Eight Lakh Fifty Three Thousand Seven Hundred Fifty Five Only) are hereby confiscated under the provisions of Section 111 (m) of the Customs Act, 1962. However, I give an option to M/s. BenQ India Pvt. Ltd. to redeem the said goods upon payment of Redemption Fine Commissioneratewise as per chart given below under the provisions of Section 125 of the Customs Act, 1962: S. No. Name of Commissionerate Redemption Fine (in Rs) 1. Air Cargo Complex, Chennai 45,000/- 2 Sea Port, Chennai 90,000/- 3. Air Cargo Complex, Mumbai 5,000/- 4. Air Cargo Complex, Delhi 9,00,000/- Total 10,40,000/- (iii) I hold the impugned goods imported in the past by M/s. BenQ India Pvt. Ltd. under the Bills of Entry, as detailed i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in foregoing paras 5,8.1 to 5.8.5. Having imposed penalty under section 114A ibid, I refrain from imposing any penalty upon M/s. BenQ India Pvt. Ltd. under section 112 (a) of the Customs Act, 1962 in terms of proviso 5 of section 114A of the Customs Act, 1962. (viii) I however, do not impose penalty upon M/s. BenQ India Pvt. Ltd. under Section 114AA of the Customs Act, 1962. 2.2 I impose penalty of As. 11,00,000/ - (Rupees Eleven Lakh only) under section 112(a) of the Customs Act, 1962 upon each of these i.e., (i) Shri Rajeev Singh, Managing Director, M/s BenQ India Pvt. Ltd. (ii) Shri Vijay Sharma, Business Manager (Projectors) of M/s. BenQ India Pvt. Ltd, (iii) Shri Hitesh Kumar, Manager (Supply Chain) of M/s. BenQ India Pvt. Ltd, (iv) Shri R. Ravichandran, Managing Director of M/s. Blessings Cargo Care Pvt. Ltd, and (v) M/s. Blessings Cargo Care Pvt. Ltd. as indicated portwise in the table given below: S. No. Port of import Penalty under section 112 (a) (in Rs) 1. ACC, Mumbai 5000/- 2. ACC, Chennai 85,000/- 3. Chennai Sea Port 5,00,000/- 4. ACC, Delhi 4,50,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e been discharging customs duty on Video Projectors by classifying them under CTI 8528 69 00 of the Tariff Act. 6. The technical specifications of data projectors and video projectors, as imported by the appellant, on the basis of which these are distinguished is given below: Sl. No. Particulars Data Projector Video Projector 1. Native Aspect Ratio 4:3 or 16:10 16:9 2. Brightness (Luminosity) More than 2500 lumens Less than 2500 lumens 3. Native Resolution 1024x768 1280x800 1900x1200 1920x1080 3480x2160 4096x2160 4. Color Wheel RGB RGBCYM RGBW RGBRGB 7. The appellant claims that the goods imported by it satisfy the aforesaid specifications/characteristics of the data projectors and, therefore, exemption from payment of BCD was rightly claimed. 8. The records indicate that the Directorate of Revenue Intelligence [DRI] initiated an investigation into the imports of data projectors by the appellant in the year 2017. The DRI formed a view that the goods were 'multimedia projectors', capable of being connected to multiple devices/audio-video sources and, therefore, were incorrectly classified by the ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rojectors are principally to be used with ADPS. The correct test is whether their specification and features are designed in such a way that they generally or primarily are meant for use with ADPS; iii. The addition of multiple ports in the goods does not take away the basic nature of goods, which is to work in conjunction with ADPS. This still remains to be the principal function of the impugned goods. The presence of such ports is only to ensure their use with laptops and ADPS. Consequently, presence of such ports makes them capable of being connected to ADPS. Therefore, even post 31.12.2016, the goods imported by the appellant are correctly classifiable under CTI 852862 00 and the legal portion classified by the Courts will continue to apply to the projectors imported w.e.f 01.01.2017; iv. For the period prior to 01.01.2017, all goods falling under CTSH 8528 61 were unconditionally exempt from payment of BCD as per the exemption notification Post 01.01.2017, serial no. 17 of the notification exempts all goods falling under CTSH 8528 62 if they are of a kind solely or principally used in an Automatic Data Processing System of Heading 8471. The goods imported by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 10% - 8528 59 00 --Other....................................... -Projectors: u 10% - 8528 61 00 --Of a kind solely or principally used in an automatic data processing system of Heading 8471 u 10% - 8528 69 00 --Other...................................... -Reception apparatus for television, whether or not incorporating radiobroadcast receivers or sound or video recording or reproducing apparatus: u 10% - 17. The exemption notification dated March 01, 2005 is as follows: Exemption to goods of specific heading, from Customs Duty (ITA Bound)- In exercise of the powers conferred by sub-section (1) of the section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the following goods of the description as specified in coloumn (3) of the Table below and failing under the heading, sub- heading or tariff-item of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as specified in the corresponding entry in column (2) of the said Table when imported into India, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ncipally used in an automatic data processing system of heading 8471". Post 01.01.2017, CTI 8528 62 00 uses the phrase "capable of directly connecting to and designed for use with an automatic data processing machine of heading 8471" 22. For the period prior to 01.01.2017, goods "principally" used with ADPS are those goods which are inherently capable of connecting with multiple devices but are designed primarily to be used with ADPS. The data projectors imported by the appellant are used with ADPS and merely because they have the capability of use in both ADPS or non-ADPS cannot be a basis for deciding whether the projectors are "principally" used with ADPS. The correct test is to find out whether the specification and features are designed in such a way that they are generally or primarily meant for use with ADPS. 23. A Division Bench of the Tribunal in Sony India, after referring to the earlier Division Bench decisions of the Tribunal in Acer India Pvt. Ltd. v. Commissioner of Customs [2009 (11) TMI 931- CESTAT Ahmedabad], Aveco Viscomm Pvt. Ltd. v. Commissioner of Customs & Central Excise, Hyderabad- II [2011 (263) E.L.T. 420 (Tri.-Bang.)], Commissioner of Customs (I) ACC....
X X X X Extracts X X X X
X X X X Extracts X X X X
....horities have clearly held that for the goods imported by the assessee, to be classified under Heading 8528 69 00, it needs to be demonstrated that the said goods are not compatible with Automatic Data Processing Systems and otherwise serve the desired purpose. In the absence of any evidence before them, the lower authorities were correct in holding that the asessees have amply demonstrated before them that the goods imported would be and can be used in conjunction with ADPS only." [emphasis supplied] 25. In Commissioner of Customs (I), ACC, Mumbai v. Vardhaman Technology P. Ltd. [2014 (301) E.L.T, 427 (Tri. -Mumbai)], this issue was again examined and the Tribunal held, after following the aforesaid decision of the Tribunal in Aveco Viscomm, that the data projectors would be classified under CTI 8528 61 00. The relevant portion of the decision is reproduced below: "6. We have carefully considered the submission and perused the record. The Department has contended that only those kinds of projectors can be classified under CTH 8528 61 00 which are solely or principally for use in an automatic data processing system of heading 8471. Since these projectors are having a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mported by the appellant satisfy the description of the goods in the exemption notification for both the periods and are, therefore, eligible for exemption. 29. The submission advanced by the learned counsel for the appellant that the extended period of limitation could not have been invoked in the facts and circumstances of the case also deserves to be accepted. The appellant claimed that it was under the bona fide belief that the goods being principally used with ADPS, would merit classification under CTI 8528 61 00. Such a belief could have been formed because of the decisions, referred to above, in which the issue of classification was decided. In such a situation the extended period of limitation could not have been invoked as was observed by the Supreme Court in Commissioner of Customs (Imports) v/s Reliance Industries Ltd. [2015 (325) E.L.T. 223 (S.C.)]. The relevant portion of the judgment is reproduced below: " 5. In this behalf, it would be pertinent to mention that the issue of classification, at the relevant time when the goods in question were imported in June, 1994, had been decided by the Tribunal in two judgments, i.e., Roto Inks Private Limited v. Colle....