TaxTMI 
TaxTMI 
2024 (2) TMI 1508
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....are being disposed of together by this common order. 2. Customs Appeal No. 50921 of 2021 is filed by M/s. Oppo Mobiles India Pvt. Oppo Ltd. to assail the Order-in-Original dated 16.02.2021 passed by the Principal Commissioner of Customs, Air Cargo Complex, New Delhi, whereby he confirmed the demand of differential duty of Rs. 143,97,78,121/- on the appellant and imposed penalty of Rs. 14,00,00,000/- under Section 112 (a) (ii) of the Customs Act, 1962 Act for the period 23.02.2018 to 31.12.2019. 3. Customs Appeal No. 50782 of 2020 is filed by M/s. Vivo Mobile India Pvt. Ltd. Vivo to assail the Order-in-Original dated 16.02.2021 passed by the Principal Commissioner of Customs, Air Cargo Complex, New Delhi, whereby he confirmed the demand of differential duty of Rs. 75,31,26,652/- on the appellant and imposed penalty of Rs. 7,50,00,000/- under Section 112 (a) (ii) of the Act for the period 24.02.2018 to 30.12.2019. 4. Customs Appeal No. 50795 of 2021 is filed by M/s. DBG Technology (India) Pvt. Ltd. DBG to assail the Order-in-Original dated 15.02.2021 passed by the Principal Commissioner of Customs, Air Cargo Complex, New Delhi, whereby he confirmed the demand of differential....
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....the appellant under 90021100/ 85177090) (b) Padget- Battery cover and front cover(classified by the appellant under 85177090), main lens and camera lens (classified by the appellant under 90021100/85177090) (c) Bhagwati- Front cover housing, middle cover housing and rear cover housing (classified by the appellant under 85177090) (d) Intex- Battery cover, middle cover and front cover (classified by the appellant under 85177090) and camera lens (classified by the appellant under 90021100/85177090) (e) Oppo- Battery cover, middle cover back cover and front cover (classified by the appellant under 85177090) and camera lens (classified by the appellant under 90021100/85177090) (f) Vivo- Battery cover (classified by the appellant under 86177090) and camera lens (classified by the appellant under 90021100) (g) Transsion- Front cover, middle cover and back cover (classified by the appellant under 85177090) and camera lens (classified by the appellant under 90021100) It was also proposed to confiscate the goods under Section 111 (m) of the Customs Act, 1962 and impose penalty under Section 112(a) (ii) of the Customs Act, 1962. 10. ....
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....mmissioner passed the impugned orders confirming the proposals in the SCNs. Submissions on behalf of the appellants 14. Shri Lakshmikumaran, learned counsel for Oppo, DBG, Padget, Bhagwati and Intex made the following submissions. (i) The issue in these appeals is identical to the one in the case of Samsung India Pvt. Ltd. in Customs appeal no. 50484 of 2021 which was decided in favour of the importer by this Tribunal's Final Order No.51665/2023 dated 20.12.2023. Therefore, these appeals may also be decided accordingly. (ii) The appellants had imported front covers, middle covers and back covers of cellular phones which house various components of the phone and also provide for dissipation of the heat. The details of these types of covers are as follows: Back Covers: These help in providing safety to the battery and internal components. They also provide ingress protection, structural support and save internal PCB, sub-components and battery from dust, moisture and other foreign particles. When a PCB or battery is exposed to such particles, it gets damaged resulting in malfunctioning of mobile phone. In some models, the back covers are also layered ....
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....heets, film foil and strips applies only to plates, sheets, film, foil and strip (other than those of Chapter 54) and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked, uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use). (vi) It is evident from this chapter note that for any goods to fall under CTH 3920 they must be plastic sheets or plates etc. of regular geometric shapes and should not be reinforced or laminated with other materials. In this case the middle cover is laminated with zinc and hence clearly gets excluded from CTH 3920. The use of these metals not only enhanced the strength of the plastic, but also helps in dissipations of the heat. (vii) Further, for the goods to fall under CTH 3920 they should not be further worked. The phone covers in their case have ground edges, thermos-formed with grooves, drilled and CNC milled and, therefore, they do not qualify as goods 'not further worked'. (viii) The phone covers were correctly classifiable under CTH 85177090 in view of section note (ii) to Section XVI which provides for classificat....
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....ii) Notification No. 57/2017-CUS dated 30.06.2017 and the Meity notification dated 14.09.2017 cannot form the basis of classification of the goods. Classification has to be only based on the customs tariff read with the general interpretative rules. Reliance is placed on Commissioner of Central Excise, Bombay versus Oswal Petro Chemicals Ltd. 2000 (126) E.L.T. 1232 (Tri) which was affirmed by the Supreme Court 2007 (127) E.L.T. 857 (S.C.). (xiii) As far as the lenses and lens covers of the mobile phones are concerned, they were correctly classified by the appellants under CTH 90021100/85177090 and they have been wrongly re-classified in the impugned order under 39209999 for the reason that CTH pertains to articles of plastic and include plates, sheets, film, foil and strip (other than those of Chapter 54) and blocks of regular geometric shape, whether or not printed or otherwise surfaceworked, uncut or cut into rectangles (including squares) but not further worked even if when so cut they become articles ready for use. Evidently, lenses cannot fall in this definition because they are not in geometrical shapes. Revenue's contention that lenses need to be classified under CT....
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....b Saha vs Commissioner of Customs (Preventive) Shillong . Final Order no. 76465-76466/2023 dated 24 August 2023 passed in CESTAT Kolkata Appeals C75278 and 75279 of 2016 18. On behalf of the Department, Shri Mihir Ranjan, learned Special Counsel and Shri Nagendra Yadav, learned authorised representative for the Revenue made the following submissions: a. The phone covers are correctly classifiable under CTH 39209999 as held by the Principal Commissioner in the impugned order. They are made of plastic and the sub- components are embedded at proper places in the front cover and back cover. The purpose of the back cover is to reduce the amount of dust on battery terminals and it is also made of plastic. The middle cover fixes the inner components and protects the battery from moisture and dust and it is also made of plastic, therefore, the impugned order was correct in holding that they are classifiable under CTH 39209999. These three covers do not contribute to the functionality of the mobile per-se and, therefore, do not deserve to be classified as parts of the mobile phones and should be classified under Chapter 39. He placed reliance on the following case laws:- ....
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....ral Mills India Ltd. versus Commissioner of Customs (Import) JNCH, Nhava Sheva 2019 (368) E.L.T. 705 (Tri. - Mumbai) Fitrite Packers versus Commissioner of Central Excise, Mumbai - IV 2016 (203) E.L.T. 452 (Tri. - Mum.) Assistant Commissioner of Central Excise Tiruchirapally versus Indian Hume Pipe Co. Ltd. 2009 (238) E.L.T. 230 (Mad.) g. The Department has duly discharged its responsibility in changing the classification and in confirming demands differential duty along with interest. The appellant mis- declared the classification of the goods and, therefore, they are liable for confiscation under Section 111 (m). Consequently, the penalty under Section 112 (a) has been correctly imposed upon the appellant. h. Submission of Ms. Madhumita Singh that once a Bill of Entry is self-assessed and goods are cleared, Revenue cannot raise a demand by issuing a notice under section 28 without first filing an appeal to the Commissioner (Appeals) is not correct and is contrary to the legal position. While both sides can appeal against the self assessment, Revenue can also issue a notice under section 28 and raise a demand. On the other hand, refund is not a ....
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....tion 111(m) (although they were not actually confiscated) because the classification of the imported goods in the Bill of Entry is, according to the Revenue, incorrect? Consequently, was the penalty under Section 112 imposed correctly? 21. Before examining the question of classification, we examine the above questions (c) to (h) above. For this purpose, it is necessary to examine the nature of the Customs duty and the legal provisions to determine and charge it, the role of classification and who can decide the classification. The charging section, i.e., the section which empowers the Government to levy and collect duties of customs is Section 12 which reads as follows: Section 12. Dutiable goods. - (1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, on goods imported into, or exported from, India. (2) The provisions of sub-section (1) shall apply in respect of all goods belonging to Government as they apply in respect of goods not belonging to Governme....
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....ny assessment in which the duty assessed is nil ; 25. Thus, classification of the goods under the Customs Tariff is a part of assessment. The next question is who can do this assessment. Section 17, reads as follows: Section 17. Assessment of duty. - (1) An importer entering any imported goods under Section 46, or an exporter entering any export goods under Section 50, shall, save as otherwise provided in Section 85, self-assess the duty, if any, leviable on such goods. (2) The proper officer may verify the entries made under Section 46 or Section 50 and the self-assessment of goods referred to in sub-section (1) and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. Provided that the selection of cases for verification shall primarily be on the basis of risk evaluation through appropriate selection criteria. (3) For the purposes of verification under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascer....
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.... which duty has not been paid; (25) "imported goods" means any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption; (26) "importer", in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner, beneficial owner or any person holding himself out to be the importer; 28. These processes of self-assessment by the importer and re- assessment by the proper officer come to an end once an order permitting the clearance of goods for home consumption is issued under Section 46. Thereafter, the goods cease to be imported goods or dutiable goods and no duty can be assessed. The only exception is when the goods are cleared for home consumption after provisional assessment in which case the assessment concludes after the assessment is finalized and an order is passed by the officer. Provisional assessment is not relevant to these appeals. 29. Assessment concludes the determination of the liability of the importer to pay duty and is similar to a decree under the Civil Procedure Code, 1908 CPC Section 2 (2) of CPC defines dec....
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....r Commissioner of Customs] may appeal to the [Commissioner (Appeals)] [within sixty days] from the date of the communication to him of such decision or order : [Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf.‖ 43. As the order of self-assessment is nonetheless an assessment order passed under the Act, obviously it would be appealable by any person aggrieved thereby. The expression "Any person‟ is of wider amplitude. The revenue,....
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....classification lists filed by Flock India (as assessees were required to during the relevant period), rejected the classification claimed and passed an order changing the classification. This order of the Assistant Collector was appealable but the assessee had not appealed to the Collector (Appeals). Instead, it had directly filed a refund application for the differential duty. Supreme Court held that refunds can be claimed if they flow from the assessment and not so as to modify the assessment. Therefore, unless the assessment order is appealed against and is modified, no refund can be sanctioned. The ratio of Flock India was followed by the Supreme Court in Priya Blue which was a Customs matter. It needs to be pointed out that unlike an SCN for demand of duty, sanction of refund is not an adjudication procedure. The officer sanctioning the refund cannot sit in judgment or modify the assessment by the assessing officer. Since every Bill of Entry is an assessment by itself, Bills of Entry can and are often appealed against. 35. Later, the Customs procedures changed and selfassessment and selective re-assessment by the officers were introduced initially as a practice. Later, in 2....
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....etent Officer. The Officer considering the refund claim cannot also review an assessment order. 7. We also see no substance in the contention that provisions for a period of limitation indicates that a refund claim could be filed without filing an Appeal. Even under Rule 11 under the Excise Act the claim for refund had to be filed within a period of six months. It was still held, in Flock (India)'s case (supra), that in the absence of an Appeal having been filed no refund claim could be made. 8. The words "in pursuance of an Order of Assessment" only indicate the party/person who can make a claim for refund. In other words, they enable a person who has paid duty in pursuance of an Order of Assessment to claim refund. These words do not lead to the conclusion that without the Order of Assessment having been modified in Appeal or reviewed a claim for refund can be maintained. 9. In our view, the ratio in Flock (India)'s case (supra) fully applies. We, therefore, see no substance in the Review Petition. Accordingly, the Review Petition stands dismissed with no order as to costs. (emphasis supplied) 38. This legal position was quoted with affirmat....
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....fied either through an appeal to the Commissioner (Appeals) or modified under section 28. The submission of the learned counsel Ms. Singh is quite the opposite of this law laid down by the Supreme Court and hence cannot be accepted. It would also be pertinent to mention that if the learned counsel's submissions are accepted, it will result in absurd consequences. If a notice under section 28 is issued, after considering the reply and hearing the noticee, the proper officer (commissioner or additional commissioner or joint commissioner or deputy commissioner or assistant commissioner) has to adjudicate the matter and pass an order. If the assessment is already appealed against before Commissioner (Appeals) and is either affirmed or annulled or modified, the assessment order merges with the order of the Commissioner (Appeals) which must be honoured. The question of the proper officer again issuing a notice under section 28 on the same issue after the Commissioner (Appeals) had decided the matter does not arise because the proper officer cannot sit in judgment over the Commissioner (Appeals) decision. 40. The question which may arise is if both sides can appeal against any assessme....
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....ty Commissioner Appraisal Group. Indeed, this must be so because no fiscal statute has been shown to us where the power to re-open assessment or recover duties which have escaped assessment has been conferred on an officer other than the officer of the rank of the officer who initially took the decision to assess the goods. (emphasis supplied) 42. Thus, the power under section 28 is the power to review the assessment by the proper officer himself and modify it. Such power is not inherently available to any judicial or quasijudicial authority as once the authority passes any order, he becomes functus officio. But where such power is conferred on an authority by law, he can exercise it. All the four judgments of the Supreme Court in Flock India, ITC Ltd, Sayed Ali and Canon India make it more than explicit the nature of the power under section 28 and that an assessment can be modified by resorting to section 28 or on an appeal. 43. We now consider the order of a bench of this Tribunal passed in Rajib Saha relied upon by the learned Counsel Ms. Madhumita Singh. The relevant portion of this order is reproduced below: 7. The Appellant cited the decision of the Ho....
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....ued within the normal period of limitation (or the extended period of limitation) by 'the proper officer' and only to recover duties not paid, short paid, not levied, short levied or erroneously refunded. 46. To sum up, the power to assess duty lies with the importer and the proper officer. Classification, valuation and applying an exemption notification, are all part of the process of this assessment. Hence, the power to decide the classification lies with the importer during self- assessment, with the proper officer during re-assessment and while issuing an SCN under Section 28 and while adjudicating, with the Adjudicating Authority and with any appellate authority in the judicial hierarchy who deals with the appeals. Classification cannot be decided by anybody else (such as a MeITY in these cases) for two reasons. First, they do not have the authority to assess under Section 17 nor have any appellate powers to modify the assessment. Second, their orders, letters, notifications, etc. are executive actions performed at the discretion of the government and are not quasijudicial or appealable decisions. Therefore, any HSN code indicated against any goods in any policy of MeITY or....
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....he corresponding entry in column (2) of the said Table, when imported into India, from so much of the duty of customs leviable thereon under the said First Schedule as is in excess of the amount calculated at the standard rate as specified in the corresponding entry in column (4) of the said Table subject to any of the conditions, as specified in the Annexure to this notification, the condition number of which is mentioned in the corresponding entry in column (5) of the said Table. TABLE S. No. Chapter Description of goods Stan- dard Condition No. or Heading or Sub- heading or tariff item rate (1) (2) (3) (4) (5) 10. 3920 99 99 All goods other than the following parts or sub-parts or accessories of cellular mobile phones, namely: (i) Battery cover (ii) Front cover (iii) Front cover (with Zinc Casting) (iv) Middle cover (v) Back Cover (vi) Main Lens (vii) Camera Lens 10% - 49. As can be seen, only such goods which match the description in column 3 of the Table and which also fall under the Tariff heading at column no. 2 are exempted. If the g....
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....on notification issued under Section 25 or on the basis of any policy of any Ministry. Notifications or policies can be issued, modified or withdrawn but the classification of the goods under the tariff will remain the same. Only if the tariff itself is amended can the classification change. Confiscation of goods under Section 111(m) and consequent penalty under Section 112 52. The impugned orders hold that the imported goods were liable for confiscation under Section 111(m) and consequently, imposed penalties on the appellants under Section 112. Section 111(m) and Section 112 read as follows: Section 111. Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable to confiscation: - (m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under Section 77 in respect thereof, or in the case of goods under trans-shipment, with the declaration for transshipment referred to in the proviso to sub-section (1) of Section 54; SECTION 112. Penalty for improper importation of ....
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.... short levied, short paid or erroneously refunded). However, there is no separate document or procedure through which the importer can self-assess the duty on the imported goods. All the elements necessary for assessing duty are filled in the Bill of Entry itself which is the entry of the goods made under Section 46. Thus, the Bill of Entry has factual elements such as the nature of the goods, quality, quantity, weight, transaction value, country of origin, etc., which all need to be correctly declared and elements which are in the nature of the opinion of the importer such as classification of the goods, exemption notifications which apply, etc. While the facts are verifiable as correct or incorrect, opinions can differ. The importer may find that the goods are classifiable under one CTH while the officer re-assessing the goods may classify them under a different CTH. If appealed against, different views can be taken at different levels of judicial hierarchy from Commissioner (Appeals) all the way up to the Supreme Court. Similar will be the case with the availability of the benefit of exemption notifications. 55. Insofar as the value is concerned, it could be partly factual an....
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....e will re-determine. Lex non-cogit impossibilia -the law does not compel one to do the impossible. If the classification and exemption notifications in the Bill of Entry do not match the views which the proper officer may during re-assessment or an audit party may take or later the adjudicating authority may take in any other proceedings, goods cannot be confiscated under Section 111(m). The case of the Revenue in this appeal is that the classification of the goods by the importers in self assessment was not correct. Even if the classification was not correct, it does not render them liable to confiscation under Section 111(m). Similarly, there could be cases where, according to the Revenue, the exemption notification claimed during self assessment will not be available to the imported goods. The importer self-assessing the goods must apply his mind when classifying the goods and not predict the mind of the proper officer. Classification of the goods by the importer, even if it is not in conformity with the re-assessment by the proper officer or even if it is held to be not correct in any appellate proceedings does not render the goods liable to confiscation under Section 111(m). ....
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.... (c) When goods cannot be classified by reference to (a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. Rule 4. Goods which cannot be classified in accordance with the above rules shall be classified under the heading appropriate to the goods to which they are most akin. Rule 5. In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein: (a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and presented with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character; (b) Subject to the provisions of (a) above, packing materials and packing containers presented with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods....
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....s us to the next question whether the mobile cases fall under 3920. According to the Revenue, they do because they are made of plastic and are cut into geometric shapes and are printed or surface-worked but not worked further. According to the appellants, these articles were further worked and therefore, they do not fall under 3920. They are manufactured by extrusion (two layers of Polymethyl Methacrylate (PMM) and Polycarbonate (PC) are layered to form a sheet of thickness of 0.64 mm), printed, a layer is Physical Vapor Deposited (to give the desired finish to the back cover), again printed, hard coated, thermoformed into the desired shape and then milled through CNC to cut at the right places to insert the components of the mobile phone as required. These processes, including the lamination and CNC milling, according to the appellants clearly take their goods out of the ambit of note 10 of Chapter 39. Further, according to the appellants, the middle cover is laminated with zinc to dissipate heat and the laminations add strength to the plastic. Since these do not fall under section note 10, they fall under chapter 85 and therefore, by virtue of note 2(s) are clearly excluded from ....
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....made of sheets of plastic, printed and surface worked and not further worked, they should be classified under 3920. The case of the appellants is that the manufacture of these goods involves extrusion, printing, physical vapor deposition, second set of printing, hard coating, thermoforming and CNC milling and therefore, further work has clearly been done on the plastic sheets after cutting and therefore, they do not fall under Chapter note 2(s) to Chapter 39. The manufacturing process of described by the appellants is not disputed by the Revenue and therefore, considering this manufacturing process, we proceed to decide if these fall under 3920 by virtue of Chapter note 2(s). 66. We find that CTH 3920 covers ―other plates, sheets, film, foil and strip of plastics, not cellular and not re-imposed, laminated, supported a similarly by with other materials. The first step of manufacture - extrusion, involves pressing together two sheets of plastic- Polymethyl Methacrylate (PMM) and Polycarbonate (PC) into a single sheet of plastic. What emerges after this process is still a sheet of plastic. The second and fourth steps are printing which also make no difference and Chapter not....
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....rent questions of law and facts. Ipea decision was in the peculiar circumstances of the case. The CBEC had issued a Circular which was in favour of the assessee and it was binding on the Revenue. Therefore, the classification was decided in favour of the assessee by the Tribunal and this decision was upheld by the Supreme Court. Relevant portion of the Tribunal's order is as follows: 5. .....The learned Advocate has placed heavy reliance on Board's Circular No. 6/86-CX 4, dated 25-9-1986, and in our view rightly, wherein the Board has considered the classification of the parts and accessories of refrigerating and air-conditioning machinery and appliances. It has been clarified therein that the parts and accessories of refrigerators for the treatment of materials by a process involving a change of temperature, as mentioned in Annexure A to the Circulars, are to be classified under Heading 84.15, 84.18 or 84.19 of the Tariff. It is not the case of the Revenue that the impugned goods find mention in the said Annexure-A. In the Circular, a very large number of parts and accessories of refrigerators etc. have been mentioned in Annexure-B but these are to be classified in their ....
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.... the Tribunal held that surface working does not take the goods out of the ambit of note 10 to Chapter 39 and they continue to fall under 39.20 as asserted by the Revenue. 73. In Speedway, the question before the Supreme Court was the classification of procured treads manufactured by the appellant. Finding that the note 9 of Chapter 40 made a distinction between 'surface working' and 'further working', and that specific entry should prevail over general entry, it was held that the impugned goods in that case would be classified under sub-heading 4008.21 and not under sub-heading 4016.99 as claimed by the Department. 74. For all these reasons, we find that rejection of the appellants' classification of the front cover, middle cover, battery cover, back cover, front cover housing, middle cover housing and back cover housing of mobile phones under CTH 85177090 in the impugned orders and their re-classification under CTH 39209999 cannot be sustained and needs to be set aside. 75. As far as the classification of lenses is concerned, we find no reason to even consider them as being classifiable under 39209999 as plastic sheets, blocks, etc. because, these are not in geometric sh....