TaxTMI 
TaxTMI 
2024 (3) TMI 1145
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....21, C/50600/2021, C/50601/2021, C/50602/2021, C/50603/2021 AND C/51565/2022, C/51566/2022, C/51567/2022, C/51568/2022, C/51569/2022, C/51570/2022, C/51571/2022, C/51572/2022, C/51573/2022, C/51574/2022, C/51575/2022, C/51576/2022, C/51577/2022, C/51578/2022, C/51579/2022, C/51580/2022, C/51581/2022 C/51582/2022 APPEARANCE: For the appellant : Shri D.K. Rana, Advocate, Shri Dhanur Gupta, Advocate, Shri Ayush Aggarwal, Advocate. For the Department : Shri S.K. Rahman, Authorized Representative. P.V. SUBBA RAO M/s. Continental Automotive Brake Systems Ltd. [the appellant], filed these 75 appeals for setting aside the following impugned orders: S.No. Appeal No. Respondent Impugned order 1. C/50546 to 50603 of 2021 Commissioner of Customs D-II/ICD/PPG/ 1147-1206/ 2020-21 dated 17/12/2020 2. C/51565 to 51582 of 2022 Principal Commissioner of Customs CC (A) CUS/D-I/Import/NCH/ 4193-4210/2021-22 dated 09/03/2022 2. Since the issue involved in all these appeals is identical, they are being disposed of together. 3. The appellant manufactures Electronic Stability Control Systems [ESCS] which are used by manufacturers of automobiles in An....
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....f 15%+ IGST of 28% + SWC of 1.5% and this assessment was upheld by the Commissioner (Appeals). 8. The question to be answered by us in these appeals is whether the ECU imported by the appellant is classifiable under CTI 9032 89 10 as claimed by the appellant or under CTI 8708 99 00 as held in the impugned orders. 9. We have heard Shri D K Rana, learned counsel for the appellant and Shri Shaikh Khader Rahman, learned authorised representative for the Revenue and have perused the records. Submissions by the appellant 10. Shri D K Rana, learned counsel for the appellant submitted that the appellant imported ECU and manufactured ESCS and sold them to automobile manufacturers for use in their anti-lock braking systems. The brakes will work even without ABS it but the ABS makes the braking safe. ECU is in the form of a printed circuit board; it receives signals from the sensors attached to the wheels and analyses the information and issues signals based on which the braking is managed by the other parts of the ABS. ECU is classifiable under CTI 9032 89 10 as "Electronic automatic regulator" and not under CTI 8708 99 00 as "parts and accessories of automobiles" for four reason....
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....ic Regulator under CTI 9032 89 10. iii. CTI 9032 89 10 being a more specific heading prevails over the more generic heading of 8708 as per General Rules of Interpretation [GIR] 3(b). iv. CTI 9032 89 10 is a later entry and it prevails over the earlier entry of 8708 as per GIR 3(c). Submissions by the department 11. Shri Shaikh Khader Rahman, learned authorised representative for the Revenue asserted that ECU falls under CTI 8708 99 00 and not under CTI 9032 89 10 and made the following submissions. i. The appellant had been classifying the ECU under CTI 8708 99 00 and paying appropriate duty and there was no dispute. Other importers have also been classifying ECU under this CTI. On 29-11-2017 the appellant sent a letter that they wish to change the classification of the ECU from CTI 8708 99 00 to CTI 9032 89 10 and in reply dated 17-05-2018 the department explained that the correct classification is CTI 8708 99 00. However, the appellant continued to file bills of entry classifying ECU under CTI 9032 89 10 which required the department to re-assess the goods. The intention of the appellant apparently is to pay 21.4% lower duty than is due by wrongly....
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....vided such headings or Notes do not otherwise require, according to the following provisions. vii. In this case, since the classification of ECU is clearly decided by the section notes and chapter notes and the chapter headings, there is no ground to follow GIR 3(a) and 3(b). Findings 12. We have considered the submissions advanced by both the sides. 13. The undisputed facts of the case are that ECU is a printed circuit board which the appellant imported and used it for manufacture of ESCS, which it sold to automobile manufacturers for use in their ABS. The ABS regulates the manner in which the brake is applied. The brake can function even without the ABS but ABS makes the braking safer by regulating it. The appellant has described the imported goods in the Bills of Entry and other import documents as 'Electronic Control Unit (automotive parts)'. The only use of the ECU imported by the appellant, as per the records, is in the manufacture of ESCS and the use of ESCS is as a part of ABS or EBS of the cars. 14. Thus, there is no doubt that ECU imported by the appellant is in the form of a printed circuit board and that it is a part of the ESCS, which is a part of ....
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....t reads as follows: III PARTS AND ACCESSORIES It should be noted that Chapter 89 makes no provision for parts (other than hulls) or accessories of ships, boats or floating structures. Such parts and accessories, even if identifiable as being for ships, etc., are therefore classified in other Chapters in their respective headings. The other Chapters of this Section each provide for the classification of parts and accessories of the vehicles, aircraft or equipment concerned. It should, however, be noted that these headings apply only to those parts or accessories which comply with all three of the following conditions : (a) They must not be excluded by the terms of Note 2 of this Section (see paragraph (A) below). and (b) They must be suitable for use solely or principally with the articles of Chapters 86 to 88 (see paragraph (B) below). and (c) They must not be more specifically included elsewhere in the Nomenclature (see paragraph (C) below). (A) Parts and accessories excluded by Note 2 to Section XVII. This Note excluded the following parts and accessories, whether or not they are identifiable as for the articles of....
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....nditions are met and ECU must be classified under CTI 8708 99 00. 21. Thus, insofar as Section Note Section XVII is concerned, the only point of difference between the two sides is whether or not ECU is an article under Chapter 90. 22. We need to examine whether ECU falls under Chapter 90, more specifically under CTI 9032 89 10, as "Electronic automatic regulators" or not. This CTI falls under the four digit CTH 9032 "Automatic Regulating or Controlling Instruments and apparatus". According to the learned counsel for the appellant, since the function of the ECU is to receive signals from the sensors, analyse the data and issue instructions, it is an electronic automatic regulator. According to the learned authorised representative for the Revenue, ECU does not fall under CTI 9032 89 10 (electronic automatic regulators) or even under the four digit CTH 9032(Automatic regulating or controlling instruments and apparatus) because it is neither an instrument nor an apparatus nor does it regulate anything. It does not measure any parameter and this is done by various sensors which are not part of the ECU. It also cannot regulate anything such as braking because that can be done onl....
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...., but to examine it one needs to read Section Note 7 (b) which is referred to. It reads as follows: 7. Heading 9032 applies only to: (a) instruments or apparatus for automatically controlling flow, level, ..... (b) automatic regulators of electrical quantities, and instruments or apparatus for automatically controlling non-electrical quantities the operation of which depends on an electrical phenomenon varying according to the factor to be controlled, which are designed to bring this factor to, and maintain it a desired value, stabilised against disturbances, by constantly or periodically measuring its actual value. 26. Evidently, Section Note 7(b) deals with either regulators of electrical quantities or instruments or apparatus for automatically controlling non-electrical quantities which depend on electrical phenomenon. ECU is not a regulator of electrical quantity nor is it an instrument or apparatus for regulating non-electrical quantities which depend on electrical phenomenon. It is not an instrument or apparatus by itself. It is the ABS which regulates the braking to ensure safe braking. It regulates the rate at which the brake is applied to diff....
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....r the appellant also submitted that CTI 9032 89 10 being a more specific entry should prevail over the general entry of CTI 8708 99 00. He also submitted that CTI 9032 89 10, being the later entry should prevail over the earlier entry in the tariff. 31. These submissions would be relevant when there are two equally plausible competing entries. Since we have found that ECU clearly does not fall under CTI 9032 89 10, this submission does not help the appellant. 32. It is also to be noted that the appellant itself had been classifying ECU under CTI 8708 99 00 and according to the reply sent by the Deputy Commissioner to the appellant, other importers of ECU have also been classifying it under this item although there would be no estoppel against the appellant in claiming a different classification, if it can provide sufficient justification. In this case, we do not find any justification. 33. Learned counsel for the appellant relied upon the judgment of the Supreme Court in Keihin Penalfa Ltd. Versus Commissioner of Customs 2012 (278) ELT 578 (SC). The issue in dispute in this case was Electronic Automatic Regulators which were held by the Tribunal to be classifiable under 85....