TaxTMI 
TaxTMI 
2025 (6) TMI 608
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....allegedly indicated that HMIL was resorting to misclassification of various goods imported for manufacture of automobiles, in order to avail undue benefit of BCD exemption vide Notification No. 152/2009- Customs dated 31/12/2009 as amended. They visited HMIL's premises and made enquiries. Thereafter, HMIL vide their letter dated 10/02/2020 informed DRI that they have reviewed the classification adopted in respect of certain Bills of Entry (BE), details of which were also given, and had found that the classification assigned by them was not consistent in some of the cases with the nature of the products and as the Country of Origin (COO) Certificates with the inconsistent codes had already been filed, they intend approaching the suppliers to revise the HS codes and issue the COO for the respective Bills of Entry retroactively as provided under the India-Korea CEPA. Further, the importer also informed the voluntary payment of differential duty and interest, in respect of some products and attached a copy of TR-6 challan paid at Chennai Customs. 2.2 Two Show Cause Notices (SCN) were issued to HMIL. SCN No. 56/2023 dated 14/06/2023 mainly for ECU's, for a differential duty of Rs 59.93....
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.... which HMIL does not accept the classification of any item as classified by the department. 4 of these 5, are ECU's with different part numbers and 1 is a ECU Coding System. No separate examination and discussion has been made for the ECU Coding System. HMIL paid the duty amount of Rs.59,56,35,048/- for the period from 04/03/2020 to 11/03/2022 during the investigation vide TR6 challan dated 05/04/2022. The remaining 8 items pertain to provisionally assessed BE's. Though the goods have been classified no demand has been raised on the same as these items are still provisional, HMIL has hence not replied to the classification of these goods. 5. We now take up the issues under dispute jointly for discussion and resolution. The main issues involved are whether, A) the classification of the goods pertaining to provisionally assessed BE's has been done without the authority of law. B) it is legal and proper on the part of the AA in not confiscating and imposing a redemption fine in respect of the impugned goods provisionally assessed and cleared under a bond and in not imposing a penalty on the assessee. C) the impugned goods are eligible for benefit of concessional rate of BCD, ba....
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....provisionally pending SVB decision under section 18 of CA 1962. AA has only changed the wrong classification to proper classification considering the untruthful declarations made by HMIL, under section 46 of the CA 1962 while clearing the said goods under self-assessment procedure. Section 18 of the CA 1962 is without prejudice to the provisions of section 46 ibid. Hence no prejudice is caused to the importer in this regard and their plea be dismissed as untenable as assessment under section 2(2) of the CA 1962 includes re-assessment also. The AA has only appropriately classified the said goods without demanding any duty arising out of the changed classification against the provisionally assessed Bills of Entry and leaving the same to finalisation proceedings. 6.3 We find that classification of goods under the Customs Tariff is a part of assessment. Assessment of duty involves the determination of the dutiability of exim goods. It involves determining the import permissibility in terms of the EXIM policy and any other laws regulating imports/exports, determining the classification and duties leviable on the goods on import - (Basic, Additional, Anti-dumping, Safeguards etc.). Perm....
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....supplied by related parties and not for any other purposes, hence, re-determination of classification by the AA is not only contrary to the provisions of CA 1962, but also against the spirit of Article 265 of the Constitution of India. 7.2 Revenue has relied on CESTAT Larger Bench, decision in Collector of Central Excise Vs P.M.T Machine Tools 1991 (55) ELT 592 (Tribunal) and Hon'ble High Court of Madras in case of Collector of Central Excise, Madras Vs India Tyre & Rubber Co Ltd [1997 (94) ELT 485 (Mad)] wherein it is held that when provisional assessment is made it should be treated as provisional for all purposes and not necessarily provisional in respect of particular grounds only. Hence it was open to the AA to finalise the classification. Further being a prominent and established manufacturer of Automobiles they are well aware of the classification of the goods. It is observed that goods which are having specific Tariff Heading/ Item were deliberately mis- classified by the importer under different tariff Heading/ Item with intention to evade applicable Customs duty. Although HMIL had cleared the goods they had executed a bond and HMIL had bound themselves to pay the deficie....
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....oration [1996 (83) E.L.T. 486 (S.C.) / 2002-TIOL-259-SC-CUS / 1996 (4) SCC 69] as under; "4. . . Whenever an unfettered discretion has been exercised courts have refused to countenance the same. That is why from time to time courts have 'woven a network of restrictive principles' which the statutory authorities have to follow while exercising the discretion vested in them. This principle has been extended even when the authorities have to exercise administrative discretions under certain situations. Another well settled principle which has emerged during the years that where a statute vests discretion in the authority to exercise a particular power, there is an implicit requirement that it shall be exercised in a reasonable and rational manner free from whims, vagaries and arbitrariness." 7.5 We note that a Coordinate Bench of this Tribunal in the case of Lan Esenda Ltd. Vs. Commissioner of Customs, Mumbai [2005 (192) ELT 305 (Tri.- Mumbai)] held that the penalties imposed before finalisation of assessment cannot sustain. A similar view has also been taken by a Coordinate Bench of this Tribunal in M/s. Shell India Markets Private Limited Vs Commissioner of Customs, Chennai [2024....
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....8.3 We find that international treaties are entered into between Sovereign contracting States for providing "preferential tariff treatment" to goods imported by participating countries, from each other, in accordance with a trade agreement. There is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein a specific treaty obligation. This is because the Directive Principles of State Policy as enshrined in Article 51 of the Indian Constitution enjoin the State to endeavor, inter alia, to foster respect for international law and treaty obligations. This is also seen to be diligently followed in CBIC's Instruction No. 19/2022- Customs, dated 17/08/2022, wherein Customs officials were instructed to give Free Trade Agreements an overriding treatment over Customs (Administration of Rules of Origin under Trade Agreements) Rules, 2020 (CAROTAR in short) wherever CAROTAR is inconsistent with FTA. Relevant portion is reproduced below. "3.2 In continuation of the same, field formations are sensitized by drawing attention again to section 28DA [Customs Act, 1962]. It is emphasized that its sub-section (3) empowers the proper officer ....
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....ia of the imported product. 8.6 HMIL submits that, for example, in the Impugned Order the validity, or the genuineness of the Certificate submitted by HMIL at the time of import of PIO AVN Audio is not quashed or denied. In the Impugned Order, the only observation is that at the time of import, in the Country-of-Origin Certificate, the CTH was mentioned as 852712/ 852721, whereas as per the Impugned Order the appropriate classification is 8526 9190 and the said CTH is not mentioned in the certificate, and because of this, the Impugned Order seeks to deny the benefit of exemption. They hold that the substantial conditions required to be satisfied to avail the benefit of Country of Origin has been complied with. Further they submit that Rule 13 of the Customs Tariff (Determination of Origin of Goods) under the Preferential Trade Agreement between the Governments of Member States of the Association of South East ASEAN Nations (ASEAN) and the Republic of India, Rules, 2009 [Herein after referred to as 'Rules of 2009'] deals with issuance of AIFTA Certificate of Origin. Para 7(c) of Annexure III to the said Rule states that in cases where an AIFTA Certificate of Origin is not a....
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....action as provided for in Paras 7, 16 and 17 of Annexure III to the Rules of 2009 it cannot then question the concession from payment of duty as eligible as per the COO Certificate. As per Para 7, in case the AIFTA Certificate of Origin is not accepted by the Customs Authority of the importing party it shall be returned to the Issuing Authority within a reasonable period but not exceeding two months, duly notifying the grounds for the denial of preferential tariff treatment. As per para 16 the importing party may request a retroactive check at random and/or when it has reasonable doubt as to the authenticity of the document or as to the accuracy of the information regarding the true origin of the goods in question or of certain parts thereof. In case of reasonable doubt as to the authenticity or accuracy of the document, the Customs Authority of the importing party may suspend provision of preferential tariff treatment while awaiting the result of verification. As per Para 17 if the importing party is not satisfied with the outcome of the retroactive check, it may, under exceptional circumstances, request verification visits to the exporting party. 8.9 In the present case Revenue ....
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....rozen character of the impugned goods, in order to avail the benefit of the Notification. Fraud vitiates all transactions and the decision in that case has been arrived at accordingly, hence it is distinguished. 9. Whether the redetermination of classification of Oil Control Valve (OCV) Assembly is legal and proper. 9.1 HMIL submits that the Oil Control Valve (OCV) is a critical component used in engine that is fitted with "Variable Valve Technology (VVT)". It has its own casing and is placed outside the engine. OCV regulate the supply of engine oil to a designated VVT hub, to advance or retard the timing by altering the Cam shaft angle position and is specifically covered under the category of valves under CTH 8481. The OCV increases the efficiency and performance of internal combustion engines. However, the efficient working of the VVT solenoid is very important for the efficient working of the engine. Although OCV is a valve it is not an inlet valve or exhaust valve to the engine and has specific functions which helps achieve fuel efficiency, reduce exhaust gases and enhance engine performance. Only inlet or exhaust valve to engine is classifiable as parts of engine and all ot....
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....E.L.T. 801], it has been held by this Court that no one single universal test can be applied for correct classification. There cannot be a static parameter for correct classification. 8. Further, the scheme of the Central Excise Tariff is based on Harmonized System of Nomenclature (for short "HSN") and the explanatory notes thereto. Therefore, HSN along with the explanatory notes provide a safe guide for interpretation of an Entry. 9. Further, equal importance is required to be given to the Rules of Interpretation of the Excise Tariff. Under Rule 3(a), it is provided that the heading which provides a specific description shall be preferred to a heading having a more general description. For example, in the case of "toys" referred to in the HSN Heading and the Tariff Heading, the description refers to reduced size model of an Article used by adults. This test helps us to understand the difference between "toys" and "furniture". 10. Lastly, it is important to bear in mind that functional utility, design, shape and predominant usage have also got to be taken into account while determining the classification of an item. 11. The afore stated aids and assistance are more importan....
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....od Assembly; Camshaft Assembly; PIO AVN Audio is legal and proper. 10.1 HMIL has stated that they do not accept the classification of the goods mentioned above as done in the impugned order. No detailed arguments are seen made in furtherance of their stand. 10.2 Revenue has stated that the importer vide reply letter dated 27/06/2023 and 12/07/2023 inter alia accepted classification changes as proposed by the department of all the 13 items listed above. In the case of Camshaft Assembly and PIO AVN Audio, HMIL has accepted the classification and only challenged the issue pertaining to the eligibility of the goods to duty exemption. They cannot now resile from their consent given and the appeal for change in classification of the said goods may be rejected. 10.3 We find that HMIL has after admitting to the classification of the above 13 goods vide their letter dated 27/06/2023 and 12/07/2023 before the Original Authority, as pointed out by revenue above, made a feeble attempt to reverse their earlier acquiescence, now before us. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. Whe....
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....public of Korea and alleged that they had wrongly availed the BCD exemption benefit @ Nil in terms of Customs Notification No. 152/2009 and thus the allegations are contrary to the facts available on record and hence, there is no application of mind, and the Original Authority has exceeded the scope and ambit of the SCN by confirming the duty liability by denying the BCD exemption benefit @ Nil in terms of Customs Notification No. 46/2011, which was not a part of allegations proposed in the SCN. Further it was stated that in their reply to the SCN they had categorically submitted to the Original Authority about their acceptance of the proposed reclassification of the imported PIO AVN Audio under CTH 8526 9190. The said tariff entry also finds a place at Serial No.1389 (I) of the same Customs Notification No. 46/2011 for the benefit of Preferential Basic Customs Duty (BCD) @ Nil and hence the impugned order denying them duty concession is not legal and proper and merits to be set aside. 11.2 Revenue, per contra opines that mere non mention of Notification no 46/2011-Cus in the SCN will not vitiate the demand as the Bills of Entry under Notification no 46/2011-Cus have also been con....
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....gned order No 103953/2023 dated 11/12/2023, covers 8 different types of ECU's. 7 of these BE's were assessed provisionally when imported and are yet to be finalised and the matter is pre-mature. Hence their reply is restricted to the finally assessed Electronic Control Unit (ECU), mentioned in the bills of entry as Computer Bracket Assembly as described in the consigners invoice. We find that 4 of the ECU's dealt with in order No 103953/2023 have different part numbers and 1 is an ECU Coding System. However, all of them have been examined collectively. Similarly, OIO 103200/2023 dated 04/10/2023, also covers Computer Bracket Assembly / ECU among other goods. We examine the issue accordingly. 12.2 As per HMIL the impugned Computer & Bracket Assembly / ECU is a device that controls all the electronic features in a car. This may range from fuel injection to maintaining perfect cabin temperature to controlling braking and suspension. ECU is a hardware embedded with software. It operates much like the BIOS does in a computer and controls all the electronic features in a car. While the basic working principle of engine operation is still based on combustion, the process is now controlle....
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....goods under a completely new CTH i.e. 8708. This is highly irregular and since the change in classification was made vide OIO No 103200/2023 dated 04/10/2023 which was outside the SCN the said order merits to be set aside on this ground itself. B) The Central Board of Excise and Customs (CBEC) vide Central Excise Order No. 49/3/97-CX dated 09.05.1997, issued in terms of Section 37B of Central Excise Act, 1944, in consultation with the Department of Electronics, had inter alia clarified that there are 2 types of Programmable controllers, and these are, Programmable Logic Controller (PLC) and Programmable Process Controller (PPC). While the former is classifiable under heading 85.37 the latter is classifiable under heading 90.32. Departmental officers are bound by Boards instructions. C) The expert opinion dated 05/08/2022 rendered by IIT Madras, confirmed that the imported ECU sample is a specific purpose Algorithm based Electronic Controller and neither a Programmable Logic Controller nor a Programmable Process Controller nor a Proportional Integral Derivate Controller (PID). Hence it is evident that the impugned goods are a category of automatic Controllers and have a specific....
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....ontrolling instruments or apparatus. G) The impugned ECU's are Controllers with a specific function covered by heading CTH 9032 which covers 'Automatic regulating or controlling instruments and apparatus'. Whereas CTH 8708 is a residual entry. It is a settled position of law that the maxim "generalia specialibus non derogant" is applicable. H) The impugned goods satisfy Note 7 under to Chapter 90 which specifically covers CTH 9032. Revenue has disagreed with this view because the 'desired value' is not a constant in the impugned goods and is hence stated to be absent, taking the goods outside the said heading. The Ld. Counsel stated that 'desired value' does not mean a fixed/static/constant value but a dynamic value. The desired value refers to an output value that is already fed in the preprogrammed software embedded in the microprocessor for a combination of inputs that are received by ECU at that point of time. As long as the ECU ensures that the set or the targeted goals or levels are achieved based upon the input, for obvious reason, the output ensures that the desired value is achieved and maintained for that input conditions, which may not necessarily be maintained at a ....
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....controlling devices, processors or systems. e) In the case of Larsen & Toubro Limited v. Commissioner of Central Excise, Mumbai (2011 (270) ELT 385 (Tri-Mum), the Tribunal had held that Programmable Process Controller is classifiable under CTH 9032. f) In the case of Crompton Greaves Limited v. Commissioner of Central Excise, Nashik (2017 (7) GSTL 124), the Tribunal had held that the Advance Variable Speed Drive Controller had to be classified under CTH 9032 under the category of Automatic Regulating or Controlling Equipment. g) In the case of Jain Irrigation Systems Ltd v. Commissioner of Customs, ACC, Imports, Mumbai (2018 (363) ELT 190 (Tri- Mum), the Imported decoders were held to be classifiable under CTH 9032. 12.6 Per Contra Revenue has stated that ECU's are commercially known as part of motor vehicle manufactured by HMIL. They are electronic goods containing; I) Core: Microcontroller II) Memory: RAM/ROM/CPU III) Communication Links: Controller Area Network (CAN) and III) Embedded Software: Boot S/W The input factors/quantities received by Electronic Control Units are different from the factors/quantities controlled by them. ECU does not automatically regulat....
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.... Auto International Ltd Vs Collector of C. EX. Chandigarh 2003 (152) ELT 3 (S.C) and M/ s. Cast Metal Industries Pvt. Ltd., 2015 (325) E.L.T. 471 (S.C.). D) ECU is not more specifically included elsewhere in the Nomenclature including under CTH 8537. They are hence correctly classifiable under CTH 8708.9900. E) He stated that HMIL reliance on 0-I-A's 301 & 302 of 2013 of Chennai Custom House for classification of ECU under CTH 903289 is not valid for the reason that the relevant O-I-O numbers 645 and 646 of 2011 pertaining to the O-I-A dated 28-2-2013 relied upon by HMIL as a settled principle of classification for the subject ECU / COMPUTER BRACKET ASSEMBLY under CTH 9032 is not tenable because a perusal of the O-I-O Nos 645 and 646 of 2011 reveals that the duty involved was Rs 3758/- & Rs 45,026/- respectively. By virtue of low monetary value as per litigation policy Circular No. 390/Misc/163/2010-JC (8- 2011) dated 17th August, 2011 read with Circular 390- Misc/163/2010-JC (6-2013) dated 03-Jun-2013, the Commissioner (Appeal) Order dated 28-2-2013 appears to be falling under low appeal category on monetary grounds (Rs 5,00,000/- limit for appeal to CESTAT) and hence has got ....
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....is hence a device pre-programmed along with software and interacts with various sensors to enable stability, safety, speed, optimal performance, fuel efficiency, regulating and minimizing the harmful gas emissions, providing notifications and signals in the Audio Video Navigation Telematic (AVNT) of the vehicle. 12.11 We find that as per SCN dated 06/10/2022, Computer Bracket Assembly/ ECU was sought to be classified under the CTH 8537, however the impugned order has classified the goods under a completely new CTH i.e. 8708. We find that the Hon'ble Supreme Court in Commissioner of Central Excise, Nagpur Vs Ballarpur Industries Ltd. [2007 (215) E.L.T. 489 (S.C.),] had held, it is well settled that the show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest and that all allegations to be met by the respondent have to be clearly spelt out in it, so that the respondent can make a proper defense of his case. Since the classification of ECU under CTH 8708, which is a substantial charge, was not alleged in the SCN dated 06/10/2022 the subsequent confirmation of demand and related action taken against the said goods in the OIO fails and merits....
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....14 The impugned ECU has a separate identifiable/ individual function of its own, as an automatic regulating and controlling electronic apparatus that helps the automobile achieve optimal performance in different parameters and is different from the main electrical machine i.e. the engine. The Type Approval Certificate issued by ARAI refers to the Marks and Numbers of the Electronic Control Unit thus acknowledging it as a functional apparatus having a definite independent function. The Hon'ble Supreme Court Commissioner Of Income-Tax, Bombay Vs. I.B.M. World Trade Corporation - [1981] 130 ITR 739 (BOM) has cited the dictionary meaning of 'apparatus' as under; "8. Now, the meaning of the word "apparatus" given in the Random House Dictionary is: 1. a group or aggregate of instruments, machinery, tools, materials etc., having a particular function or intended for a specific use. 2. any complex instrument or machine for a particular purpose." Further the Apex Court in the case of Commissioner Of Customs, New Delhi Vs C-Net Communication (I) Pvt. Ltd, [2007 AIR SCW 6208, 2007 (12) SCC 72], held that the word 'apparatus' would certainly mean the compound instrument or chain....
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....ter must prevail. Hence prima facie ECU's appear to be covered by Chapter 90 rather than Chapter 87 of the Customs Tariff. 12.15 We find that Para 'O' under HSN Explanatory Notes to CTH 8708, reads as under. (0) Safety Airbags of all types with inflater system (e.g. Driver- side airbags. passenger-side airbags to be installed in door panels for side-impact production or airbags to be installed in the ceiling of the vehicle for extra production for the head) and parts thereof. The inflater systems include the ignitor and propellant in a container that directs the expansion of gas into the airbag. The Heading excludes remote sensors or electronic controllers as they are not considered to be parts of the inflater system. Thus, even though, Safety Airbags with inflater system are specifically covered under CTH 8708 9500, the Air bag Control Unit being an Electronic Controller (used for inflating the Airbags) is excluded from CTH 8708 9500 as per the above exclusion clause. Hence the confirmed classification of imported ECU under CTH 8708 based on sole and principal use with Vehicles of 8702 to 8704 is not an absolute principle in classification of goods. 12.16 Revenue has ....
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....d English Dictionary is "That is longed for, wished, or wanted". As per the web site dictionary.com 'desired' means, "1. yearned or wished for; coveted. 2. deemed correct or proper; selected; required:". The word has a broad meaning and in the present context covers a functional or technical requirement and cannot be read restrictively. Unlike in the case of an industrial machine doing fixed processes the desired value in an automobile is an optimum operating value and is not constant. It depends on the requirement of a working automobile at a point of time, so as to ensure that it operates within desired parameters. This could depend on the specific requirements of the process being done by the machine at that point of time. For example, when the driver of a car accelerates the automobile, the engine controller computes the appropriate amount of fuel as well as the best point in time for injection and ignition suitable for that velocity and the external environment which the automobile has to negotiate etc. Similarly, while going uphill as contrasted with going downhill, speeds, difficulty angles, conditions etc all vary and the desired values required to keep the vehicle safe and....
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....criteria as being relevant in determining whether a product is a part: (1) the product is essential to the operation of another product; (2) the product is a necessary and integral component of the other product; (3) the product is installed in the other product; and (4) common trade usage and practice. In Deputy Commissioner Vs Union Carbide India Ltd. [(1976) 38 STC 198 (KER)], the Kerala High Court after referring to some of the leading decisions of the Allahabad High Court held as follows : "The principle which can be drawn from the above decisions appears to be that a thing is a part of the other only if the other is incomplete without it. A thing is an accessory of the other only if the thing is not essential for the other but only adds to its convenience or effectiveness." (emphasis added) No such test has been examined and satisfied before classifying the goods as parts under CTH 8708 and hence the discussion is incomplete to that extent. Therefore it is difficult to hold that the goods have been comprehensively examined and classified. 12.20 In the case of Intel Design Systems (India) Pvt. Ltd. Vs Commr. of Cus. & C. Ex. 2008-TIOL-18-SC-CX the Hon'ble Supreme Court hel....
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.... its sole or principal use. First of all Note 3 to section XVII states that, references in Chapters 86 to 88 to "parts" or "accessories" do not apply to parts or accessories which are not suitable for use solely or principally with the articles of those Chapters. A part or accessory which answers to a description in two or more of the headings of those Chapters is to be classified under that heading which corresponds to the principal use of that part of accessory. Hence the note deals with goods which answers to a description in two or more of the headings of the Chapters falling under Section XVII and not between goods which answers to a description in two or more of the headings of the different Sections as wrongly stated in the impugned order. The impugned order has referred to the judgment of the Hon'ble Supreme Court in (i) M/s G.S Auto International Ltd Vs Collector of C. EX. Chandigarh 2003 (152) ELT 3 (S.C) which pertained to classification of goods falling under Sections XV and XVII. The Hon'ble Court as per a conjoint reading of the Notes of both the Sections stated that the test to be applied is whether the goods are suitable for use solely or primarily with articles of ....
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....nts. They interpret words of statutes their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton, [1951 AC 737-761], Lord MacDermott observed : The matter cannot, of course, be settled merely by treating the ipsissima verba of Wills. J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge." 12.25 We find that the HSN Explanatory Notes under Section XVII explains the scope of the terms "parts and accessories" for the purpose of Section XVII as below: "(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 vehicles, aircraft or equipment concerned. It should, however be noted that these headings apply only to those part....
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....ling non-electrical quantities the operation of which depends on electrical phenomenon. Accordingly, the Principal Bench, dismissed the Appeals and upheld the Order of the Adjudicating Authority wherein the goods were classified under CTI 8708 9900. We find that ECU is a generic name. It is not unique to motor vehicles and is used in domestic machines like refrigerators, washing machine, dish washers etc. and also in industrial machines. Even in motor vehicles there are known to be between 1 to more than 70 ECU's. They include body control modules for the door, seat, power lock, airbag, air condition system etc. and powertrain control modules which includes anti-lock brake system (ABS), engine control unit, transmission control unit etc. Each ECU performs separate functions as per the machine and mechanism it is a part of and is not comparable to another. Hence the classification of each ECU for the purpose of assessment as per the Tariff must be considered separately. The issue in the said judgment was whether the ECU which was a printed circuit board imported by HMIL to be used in the manufacture of Electronic Stability Control Systems which are used by manufacturers of automobil....
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.... the normal period of 2 years from the "relevant Date" (Clearance date of the imported goods), hence, part of the demand may be held as unsustainable and unacceptable. It is submitted that the Impugned Order has confirmed duty liability for 118 finally assessed Bills of Entry and out of the 118 finally assessed Bills of Entry, for 53 Bills of Entry, the demand is after the period of 2 years, hence, not protected under Section 28 (1) of the Customs Act, 1962. Therefore, only with respect to remaining 65 Bills of Entry out of 118 finally assessed Bills of Entry, the demand notice was issued within the time limit of two years. 13.2 Revenue has stated that during the course of investigation by DRI, the importer as per section 28(1)(b) of CA 1962 on their own ascertainment has voluntarily paid duty differential duty and intimated the same before the issuance of SCN on 14/06/2023. Hence section 28(3) of Customs Act, 62 will come into play. The CA 1962 does not have a provision to pay duty 'under protest' and no special provision exists under section 28 for such payment. Therefore, the relevant date for issuance of SCN has to be computed from the date of receipt of information of duty pa....
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....ng sections 111 (m) for confiscation of the goods and 112(a) and 114(AA) of CA 1962 for penalising HMIL. The burden of the charge is that HMIL while filing the bills of entry had subscribed to a declaration as to the truthfulness of their contents. Further under the self-assessment procedure onus is on the importer to ensure that they declare the correct description, classification, applicable rate of duty, value and correctly and claim the benefit of notifications if any in respect of the imported goods while presenting the bill of entry. However the importer has failed to comply with the same. A similar discussion is seen at paras 30, 31 and 32 of OIO No 103200/2023 dated 04/10/2023. 14.3 We find that this is a case where the allegation of suppression has been made only because the Ld. Adjudicating Authority does not agree with some of the classification of the imported goods made by HMIL who in respect to some goods have agreed to change the classification made after DRI started its investigation and have paid the differential duty involved. This has led to the conclusion that HMIL has failed to comply with the procedures as set out in the CA 1962. However, it is settled law th....
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....c [2009 (248) E.L.T. 122 (Bom.)]. The High Court had distinguished the Apex Court decision in case of Weston Components Ltd. (supra), while holding that concept of redemption fine arises in the event the goods are available and are to be redeemed, and if goods are not available, there is no question of redemption of goods. In any case HMIL has not been found committing a blame worthy act and the demand has been restricted to the normal period. Hence the appeal filed by Revenue is rejected. No question of confiscation, fine and penalty hence arises. We hold accordingly. 15. Having regard to the discussions we modify the impugned orders as below. (1) SCN No. 56/2023, dated 14/06/2022; OIO 103953/2023,dated 04/12/2023. A) We hold that the 7 imported ECU items, which were cleared through provisionally assessed Bills of Entry have been decided prematurely by the impugned order. The fiinalisation of classification of provisionally assessed BE's by piece-meal penal proceedings without concluding the dutiability of the imported goods is not proper in law and is set aside. The classification of the said goods can be done at the time of finalizing the provisional assessment, without bei....
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....it of Notification No. 46/2011, dated 01/06/2011 as claimed. D) PIO AVN Audio were imported from Vietnam and availed the BCD exemption benefit @ Nil in terms of Customs Notification No. 46/2011, whereas, in the SCN, it was alleged that the goods were imported from Republic of Korea and had wrongly availed the BCD exemption benefit @ Nil in terms of Customs Notification No. 152/2009. However, the wrong quoting of a notification benefit in the SCN is a minor error and is not fatal to the OIO. Hence HMIL plea for quashing this part of the impugned order is rejected. E) HMIL has not disputed that PIO AVN Audio are appropriately classifiable under CTH 8526.9190. They are eligible for the benefit of concessional rate of BCD @ Nil in terms of Serial No.1389 (I) of Notification No. 46/2011 Customs dated 01/06/2011, instead of claimed Serial No.1390 (I) claimed by them and hence merits to be granted. However, even without reference to this legal issue, which is acceptable, we have already stated that once the COO Certificate covers the imported goods and is not challenged and modified as per the procedure established by the Rules of 2009, the benefit of concessional duty as per the cite....