TaxTMI 
TaxTMI 
2025 (7) TMI 1414
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.... Complex (ACC), Mumbai and for this purpose have filed various Bills of Entry (B/Es) periodically during the disputed period from 29.07.2017 to 26.02.2022, by classifying the "LCD monitor" under Customs Tariff Item (CTI) 8528 5200. The appellants have self-assessed the customs duty payable thereon by claiming the Integrated Goods and Services Tax (IGST) @ 18% as applicable to 'computer monitor' under Serial Nos. 383C & 384 of Schedule-III to Notification No. 01/2017-Integrated Tax (Rate) dated 28.06.2017. 2.3 On the basis of intelligence, Central Intelligence Unit (CIU) of Air Cargo Customs authorities have conducted 100% examination of the imported goods covered under B/E No. 7103812 dated 17.01.2022 filed by the appellants, and found that the imported goods are 'system display' (parts of ultrasound machine) the appellants have classified it under CTI 8528 5900 wherein IGST have been claimed at 18% in terms of serial No.384 of Schedule-III of IGST Notification No.01/2017-IT (Rate) dated 28.06.2017. An enquiry with the importer appellants revealed that the '21.5 inch system display' is used as a display unit for sonography machine with the dedicated connectors and functions such....
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....ADC machine or Laptop computers etc., as they have requisite input ports to receive data or information from computers. The impugned goods are not monitors for TV or Video monitor, as it does not have TV tuners. He further stated that the user manual of impugned goods specifically indicate that these have ports such as DVI-D, VGA, DP etc., to enable the imported goods to be connected to any ADP machine using appropriate cables. He also stated that the medical equipment to which these impugned goods are connected, have computer/ADP machine inside such equipment. This factual aspect of usage of imported goods with computers have also been certified by the Chartered Engineer in his certificate dated 10.11.2023 wherein it has been stated that the monitors in question can in fact be connected to the Central Processing Unit (CPU) of a Desktop Computer and that the monitors worked unhindered and in a manner that any other computer monitor interacts with the ADP. He further stated that the capability of the monitors to connect with ADP machine alone is relevant for deciding the classification as 'computer monitor' and the presence of additional features such as digital imaging and communic....
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....al) affirmed by Hon'ble Supreme Court in 2001 (128) E.L.T. A202 (S.C.) (vii) Neuvera Wellness Ventures P Ltd. Vs. Commissioner of Customs, Mundra - 2023 (10) TMI 964- - CESTAT Ahmedabad. 4.1 Learned Authroised Representative appearing for the Revenue reiterated the findings recorded by the learned Commissioner in the impugned order and stated that the appellants have described the goods in the B/Es as 'other monitors' and claimed classification under CTI 8528 5900 but for the purpose of IGST they had claimed the same as 'computer monitor'. The appellants without changing the classification adopted by them in CTI 8528 5900 cannot claim the benefit of the rate of 18% IGST. The imported goods are having BNC connectors which is for video signals/ communication, composite signals whereby display units are connected to the video camera by BNC to VGA cable, which feature are not found in any general-purpose computer monitor for ADP machine. The adjudication order of Chennai Customs and the Chartered Engineer's certificate have not gone in to the details of BNC connectors and they cannot be taken as a basis for classification of the impugned goods. 4.2 He further stated that....
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....f customs duty i.e., additional duty of customs, more particularly the Integrated Goods and Service Tax (IGST) leviable under sub-section (7) of Section 3 of the Customs Tariff Act, 1975; and, whether the adjudged demands including penalty imposed in the impugned order is sustainable or not? 7. In order to address the above issue of classification of imported goods, we would like to refer the relevant legal provisions contained in Section 12 of the Customs Act, 1962; the Customs Tariff Act, 1975 and rules framed thereunder, relevant Notification Prescribing the IGST rate for consideration of proper and appropriate classification of the subject goods under dispute. "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 Government." ....
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....ovided such headings or Notes do not otherwise require, according to the following provisions: 2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished articles has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled. (b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. 3. When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification....
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....ly traded goods, i.e., 'Harmonized Commodity Description and Coding System' (HS). Accordingly, goods are to be classified taking into consideration the scope of headings / sub-headings, related Section Notes, Chapter Notes and the General Rules for the Interpretation (GIR) of the First Schedule to the Customs Tariff Act, 1975. Rule 1 of the GIR provides that the classification of goods shall be determined according to the terms of the headings of the tariff and any relative Section notes or Chapter notes and thus, gives precedence to this while classifying a product. Rules 2 to 6 provide the general guidelines for classification of goods under the appropriate sub-heading. In the event of the goods cannot be classified solely on the basis of GIR 1, and if the headings and legal notes do not otherwise require, the remaining Rules 2 to 6 may then be applied in sequential order. Further, while classifying goods, the foremost consideration is the 'statutory definition', if any, provided in the Customs Tariff Act. In the absence of any statutory definition, or any guideline provided by HS explanatory notes, the trade parlance theory is to be adopted for ascertaining as to how the....
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....e in classification lies in the narrow compass of the two Sub-headings i.e., 8528 52 or 8528 59 as such sub- headings themselves contain the respective Tariff Items i.e., 8528 52 00 or 8528 59 00, in which the impugned goods are required to be correctly classified. Now, we may closely examine the scope of the contending Sub- headings/Tariff Items thereof for determining correct classification of the imported goods. 9.3 It could be seen that by applying the GIR 1 - rule at (i) above, the position is made clear that Sub-heading 8528 covers within its scope and ambit, mainly of three broad categories of goods for ascertaining proper classification: (i) first category is about all the monitors and projectors not incorporating television reception apparatus; (ii) second category covers television reception apparatus, whether or not incorporating radio-broadcast receivers or sound or video recording or reproducing apparatus, for the display of signals (television sets); and (iii) third category covering apparatus for the reception of television signals, with the display capabilities e.g., Receivers of satellite television broadcasts. As the impugned goods....
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....perated by a remote control (ix) they may incorporate, swivel and height adjusting mechanisms, glare-free surfaces, flicker-free display, and other ergonomic design characteristics to facilitate prolonged periods of viewing at close proximity to the monitor (x) they may utilize wireless communication protocol to display data from an ADP machine. 9.5 On the other hand, monitors which are not used with ADP machine, are of those monitors, which are capable of receiving signals when connected directly to video camera or recorder, by means of composite video, s-video or co-axial cables, so that all the radio frequency circuits are eliminated. These are typically used by television companies or for closed-circuit television (such as those in the airports, railway stations, factories, hospitals etc.,) for display. They can, moreover, have separate inputs for red (R), green (G) and blue (B), or be coded in accordance with a particular standard such as NTSC, SECAM, PAL, D-MAC etc., for reception of coded signals, by incorporating video decoding device. 9.6 On careful perusal of the tariff entries under the First Schedule to the Customs Tariff and the HS Explanatory N....
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....r both sub-headings of 8528 52 and 8528 59 remain the same, such incorrect classification have not resulted in any duty difference with respect to basic customs duty leviable under Section 14 of the Customs Act, 1962 read with Section 2 of the Customs Tariff Act, 1975. Further, in order to determine whether such incorrect classification has affected the determination of correct rate of IGST as the 'computer monitors' or not, we have to examine the coverage of entries given under Schedule-III (serial No. 383C & 384) and Schedule-IV (serial No.154) of the Notification No. 01/2017-IT (Rate) dated 26.07.2017, which are extracted and given below: Notification No. 1/2017-Integrated Tax (Rate) dated 28-6-2017, as amended *** "In exercise of the powers conferred by sub-section (1) of section 5 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017) read with sub-section (5) of section 15 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, hereby notifies the rate of the integrated tax of- (i) 5 per cent in respect of goods specified in Schedule I, (ii) 12 per cent in resp....
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....on. (v) The words and expressions used and not defined in this notification, but defined in the Central Goods and Service Tax Act, 2017 (12 of 2017), the Integrated Goods and Services Tax Act, 2017 (13 of 2017) and the Union Territory Goods and Services Tax Act, 2017 (14 of 2017), shall have the same meanings as assigned to them in those Acts. 2. This notification shall come into force with effect from the 1st day of July, 2017." 10.2 From plain reading of the above notification entries relevant to the present case, it transpires that the specified rate of IGST mentioned in the schedule would apply to all the goods itemized therein. Accordingly, computer monitors, set top boxes for television and television set including LCD or LED television falling under heading 8528, if these are not exceeding 32 inches are attracting IGST at the rate of 18%, as prescribed under entry at Serial No.383C and 384 of Notification dated 28.06.2017. As distinct from the above (i) Monitors and projectors, which are not incorporating television reception apparatus and (ii) Reception apparatus for television, other than (a) computer monitors not exceeding 32 inches, (b) television se....
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.... Government of India Ministry of Finance Department of Revenue Central Board of Excise & Customs 159A, North Block, New Delhi-1. Dated 10th September, 2007. To All Chief Commissioners of Customs. All Chief Commissioners of Customs & Central Excise. Chief Departmental Representatives, CESTAT. All Commissioners of Customs. All Commissioners of Customs & Central Excise. Subject: Classification of Digital LCD / Flat Panel Monitor - Admissibility of Notification benefits - reg. *** It has been represented by the trade and industry association that certain difficulties have been faced in classification of monitors for use with Automatic Data Processing (ADP) machine and consequent import duty exemption benefits. Doubts have been expressed by field formations as to whether 'LCD or Flat Panel Monitors, if used along with ADP Machines would be classifiable as 'ADP Monitor' and whether exemption from Customs duty vide Sl.No.17 of Notification No. 24/2005-Cus dated 1.3.2005 would be admissible. 2. The issue was examined in the Board. Monitors used along with ADP machines were classified t....
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....or multi functional screen. These enable the monitors to receive broadcast signals or other video signals from DVD player or video gaming devices. May also additionally have DVI Port. Computer monitors receive RGB signals, which is only video information and horizontal and vertical sync information. They do not possess separate audio circuits. TV/Video monitors are capable of receiving composite signals which are a modulated signal containing both video and audio signal. Thus, they require built-in Tuner Cards Computer monitors are characterized by low emission standards (brightness of 400 cd/m2 or less is an indication that a display is an ADP monitor) and have various ergonomic features such as swivel, tilt mechanism, glare free and flicker free surfaces, to enable close proximity and prolonged viewing. TV displays are designed to be viewed across a room which is brighter than the computer displays. They are generally not provided with ergonomic features such as swivel and tilt. Technical specifications: Display pitch size is small usually 0.28 mm or less; Band width more than 15MHZ; Horizontal frequency 15 to 155 KHZ; Marked by high resolution to enable c....
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....l specifications to be treated as 'computer monitors'. Therefore, we find that the impugned goods are properly classifiable as 'computer monitors'. 12.2 In addition to the above, in deciding the issue of classification within the Chapter Heading 8528, learned AR has stated that in terms of Section Note 4 to Section XVI and in terms of Chapter Note 5(E) to Chapter 84 providing for classification of 'machine' forming part of whole combination of machines to be classified along with such machine and that even though such machine being part of ADP machine, since provide a specific function has to be classified under the heading appropriate to their respective function, for treating it as a part of the medical equipment. In this regard, we find that the Section Note 5 to Section XVI clearly state that for the purposes of these section notes, the expression 'machine' means any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of Chapter 84 or 85. Further, medical or surgical instruments or apparatus including ultrasound scanning machine, MRI apparatus, ECG machine etc. are covered under heading 9018. Thus, the reference to the above section/chapter not....
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....Hindi version will follow. Enclosure (iii) Subject : Eligibility of general purpose Labelling Machine under Notification No. 21/2002-Cus., dated 1-3-2002 for use in Textile Industry. Issue in Brief : This matter was discussed in the Tariff Conference of Chief Commissioners of Customs held at Kolkata on 22nd and 23rd January, 2004 [Agenda Point N-8]. Concessional rate of duty of 5% is extended to specified machinery/equipment which are meant for use in textile industry vide S. No. 250 of Notification No. 21/2002-Cus., dated 1-3-2002. List 30 of the said Notification specifies labeling machine at Sl. No. 84 therein. The intention of the Notification is to allow concessional duty for labeling machines which are for use in textile industry. The field formations have noticed import of Labeling machines of general purpose which can be used not only in textile industry but also in other industries. Labeling machines, imported by trading firms are normally used for general purposes and not in textile industry alone. But importers of such machines are claiming concessional rate of duty under the said notification by declaring them as machinery/equipment for use in....
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....dia shall, in addition, be liable to integrated tax at such rate, not exceeding forty per cent. as is leviable under section 5 of the Integrated Goods and Services Tax Act, 2017 on a like article on its supply in India, on the value of the imported article as determined under sub-section (8). 'in section 3 appears to need the simultaneous support of 'Provided that the integrated tax on goods imported into India shall be levied and collected in accordance with the provisions of section 3 of the Customs Tariff Act, 1975 on the value as determined under the said Act at the point when duties of customs are levied on the said goods under section 12 of the Customs Act, 1962.' in section 5 of the Integrated Goods and Services Tax (IGST) Act, 2017- not considered essential for the erstwhile authority to charge either of the additional duties. The legislative intent in placement of the said proviso, as a particular departure from '5. (1) Subject to the provisions of sub-section (2), there shall be levied a tax called the integrated goods and services tax on all inter-State supplies of goods or services or both, except on the supply of alco....
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....mported goods and posing no discretionary authority therein. In the light of this being a distinct 'integrated tax', and not an additional duty of customs equal to another duty charged and collected under a scheme of assessment, the adoption of rate claimed by an importer can be disputed only by such officers conferred with authority to do so. Such officers with jurisdiction to intrude into self-assessment are central tax officers. The enabling of levy of 'integrated tax' in Customs Tariff Act, 1975 does not confer any power to intrude upon rate claimed in the bill of entry and 'proper officer', invoking power of assessment or power of recovery under Customs Act, 1962, would be in excess of jurisdiction to venture into determination of rate of duty under a law that is outside jurisdictional competence. This perspective on the enabling provision is not prejudicial to revenue for reasons discussed supra and it is only such prejudice that may prompt an alternative perspective. Learned Authorized Representative has not been able to demonstrate so. 13. The rate of duty for levy of 'integrated tax' is prescribed under the authority of section 5 of....
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....esponding to it. It is seen that the columnar reference to First Schedule to Customs Tariff Act, 1975 is to 'Chapter 30 or any other chapter', insofar as the former is concerned, and to 'heading 3822' as far as the latter is concerned; considering the specifics therein, the claim for application of these rates of 'integrated tax' respectively is not to be brushed aside. 15. The effect of the proposition of Revenue, in support of the adjudication order, on the part of Learned Authorized Representative is that the impugned goods are not specifically emplaced in the claimed Schedules or in Schedule IV, V and V of the 'integrated tax' rate notification with consequent application of the residuary serial no. 453 corresponding to 'goods which are not specified in Schedule I, II, IV, V and VI' with columnar reference to any Chapter of the First Schedule to Customs Tariff Act, 1975. The question that begs an answer, and in the context of the rules for interpretation of the Customs Tariff Act, 1975 as well as the Explanations therein being applicable to the placement of goods in the Schedules to the 'integrated tax' rate notification ....
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....n the market as Denatured Salt. Department's own Chemical Examiner after examining the chemical composition has not said that it is not denatured salt. On the other hand, after examining the chemical composition has opined that the subject matter is to be treated as Sodium Chloride.' and further in Hindustan Ferodo Ltd v. Collector of Central Excise, Bombay [1997 (89) E.L.T. 16 (S.C.) ] that '3. It is not in dispute before us, as it cannot be, that the onus of establishing that the said rings fell within 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. Learned Counsel for the Revenue submitted that the matter be remanded to the Tribunal so that the evidence on record may be reappreciated. As we have stated, no evidence was led on behalf of the Revenue. There is, therefore, no good reason to remand the matter.' stipulating the rules of engagement in adversarial contentions on classification of goods for assessment. Hence....
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....penalty. Neither Section 90 of the Finance Act, 2000 provides for the same. Therefore, no interest and penalty can be levied on the portion of payment pertaining to surcharge, CVD and SAD. We must also note that sub-section (8) of Section 9A of the Customs Tariff Act, 1975, prior to the 2004 amendment, did not include interest and penalties. By Section 76 of Finance (No.2) Act, 2004, the words in sub- section (8) of Section 9 of the Customs Tariff Act, 1975 "relating to non levy, short levy, refunds and appeals" were replaced with "relating to, the date for determination of rate of duty, non levy, short levy, refunds, interest, appeals, offences and penalties". No such amendment to include interest and penalty was inserted in sub-section (6) of Section 3 or sub- section (4) of Section 3A of the Customs Tariff Act, 1975. Therefore, the intention of the legislature was very clear that it wanted to include interest and penalties only with regard to anti-dumping duty on dumped articles and not for CVD, i.e., levy of additional duty equal to excise duty and SAD, i.e.,, special additional duty. No such insertion or amendment was made in Section 90 of the Finance Act, 2000 relati....
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....provides for additional customs duty and special additional duty but creates no liability for penalty or interest for additional duty or special additional duty. Likewise the Finance Act, 2000 under section 90. That being so imposing penalty or interest on additional duty and special additional duty or surcharge which is not connected to the basic customs duty is unwarranted or without authority of law. 29. Further the Customs Act, 1962 under section 28 provides for recovery of dues and under section 28AB provides for interest on delayed payment of duty. Both are separate provisions and in our view, the incorporating provisions would apply only to the duty leviable under the Customs Act and not interest on delayed payment of duty or penalty because as time and again Courts have held that taxing statute have to be incorporated strictly and tax can be imposed only when the language of the statute expressly provided for it. The authority has to be provided specifically, explicitly and expressly. Moreover, CVD, SAD and surcharge are in addition to the basic customs duty. Sub-section (5) of Section 3 and sub-section (3) of Section 3A of Customs Tariff Act, 1975 provide that the....
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....of interest or penalty on the additional duties of excise payable under section 3 of the said Act. It was held that taxing statutes must be construed strictly and that Section 11AC (for penalty) and Section 11AB (for interest) of the Central Excise Act were inapplicable. 32. In Valecha Engineering (supra), the judgments of the Hon'ble Apex Court in Orient Fabrics (supra), India Carbon (supra) and J.K. Synthetics (supra) were referred to. It was held in paragraphs 14-16 and 27 that interest and penalty can be only leviable if there be substantive provisions in the statute imposing interest and penalty. However, in paragraph 30, it was then held that provisions for interest form part of machinery provisions. This observation in Valecha Engineering (supra) is purportedly based on the ratio of India Carbon (supra) and J.K. Synthetics (supra). In the decisions of the Apex Court in India Carbon (supra) and J.K. Synthetics (supra) interest and penalty were held to be substantive in nature. In J.K. Synthetics (supra) it was held as follows: "Therefore, any provision made in a statute for charging or levying interest on delayed payment of tax must be construed as subst....
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....ustoms duty under section 90 of the Finance Act and CVD and SAD under the Customs Tariff Act, 1975 would all be covered under any law for the time being in force. Therefore, according to Mr. Mishra CVD under section 3 and SAD under section 3A of the Customs Tariff Act, 1975 and surcharge under section 90 of the Finance Act, 2000 are all levied under section 12 of the Customs Act, 1962. Therefore, imposing interest under section 28AB on surcharge, CVD and SAD would be correct in law. 34. Section 9A(8) of the Customs Tariff Act, 1975 which borrowed provisions from Customs Act, 1962 did not borrow provisions relating to interest and penalty. The Hon'ble Courts, in judgments cited supra, held that in view of no specific borrowing, no interest and penalty can be imposed on anti-dumping duty. Later on, Finance (No.2) Act, 2004 amended sub-section (8) of Section 9A suitably to include interest and penalty. However, similar amendments have not been made to Section 3(6) of the Customs Tariff Act, 1975 relating to CVD, i.e., additional duty equal to excise duty or Section 3A(4) of Customs Tariff Act, 1975 relating to SAD, i.e., special additional duty or surcharge under section ....
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....t relatable to the First and the Second Schedule of the Customs Act but the additional duty if leviable has to be equal to the excise duty which is leviable under the Excise Act. This itself shows that the charging section for the levy of additional duty is not Section 12 of the Customs Act but is Section3 of the Customs Tariff Act, 1975. This apart sub-sections (3), (5) and (6) of Section 3 refer to additional duty as being leviable under sub-section (1). In sub-section (5), for instance, it is clearly stated that the duty chargeable under section 3 shall be in addition to any other duty imposed under this Act or under any other law for the time being in force. 14. There are different types of customs duty levied under different acts or rules. Some of them are; (a) a duty of customs chargeable under section 12 of the Customs Act, 1962; (b) the duty in question, namely, under section 3 (1) of the Customs Tariff Act; (c) additional duty levied on raw-materials, components and ingredients under section 3 (3) of the Customs Tariff Act; and (d) duty chargeable under section 9A of the Customs Tariff Act, 1975. Customs Act 1962 and the Customs Tariff Act, 1975 are two separate i....
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.... when it was due. Deriving financial benefits itself cannot be a ground to order payment of interest in the absence of any statutory provisions for payment of interest. 40. Therefore, the order of the Commission to the extent of requiring petitioner's to pay interest at the rate of 10% against the four show cause notices and penalty (Rs. 1,00,000/- in the case of first show cause notice Rs. 10,00,000/- in the case of second show cause notice and Rs. 5,00,000/- in the case of third show cause notice) is liable to be and are hereby quashed and set aside. 41. The Rule issued on 21st April 2009 is made absolute." 14.3 We also find that the Special Leave Petition (Civil) Diary No.18824/2023 preferred by the department in the above case of Mahindra & Mahindra Ltd., (supra) was dismissed by the Hon'ble Supreme Court by holding that they do not find any merit in the SLP in its judgement dated 28.07.2023. 14.4 Further, we also note that Sub-section (12) of Section 3 of the Customs Tariff Act, 1975 have been amended vide Finance (No.2) Act, 2024 approved by the Parliament w.e.f. 16-8-2024, in specifically providing for assessment, non-levy, short-levy, recovery et....
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....SERVATIONS RELEVANT DOCUMENTS DECISION TAKEN CLASSIFI- CATION OPINION FILE "225. Colour monitor comprising a 22 inch 8528.51 / 8528.59 8528.51 The Committee agreed to NC1084 G/8 HSC46 0528.51/1 3170 (55.58 cm) TFT LCD (Thin film transistor classl'y the monitor in question NO1849 0/5 + liquid crystal display) panel combined in in heading 85.28 (subheading the same housing with control circatry. 8528.51), by application of GIRs NC1584 DVI-D (digital visual interface - for digital 1 and 6. NC1553 LJ/S signal orly) and VGA (Video Graphics Application of GIRs 1 and 6. NC1544 Amary) inout connectors and adjustment LED (light emitting diode) touch-sarsor controls. The monitor includes the following components and features : · Colour saturation 72 % (NTSC): . True resolution 1680 x 1050 portis. pixel pitch 0.282 mm, dinplay colour 16.7 million colours: Brightness (max) 250 cd / m2: - Contrast ratio 50000:1: · Viewing angle 170" (-)/ 160" (V): Response time 2 ms (Gray-to-Gray): Vidiec features : Trace Free Technology, Splendid Video Intelligence Technology, Splendid Video Preset Modes (5 m....