TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 686
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....pellants were regularly importing the said goods from Malaysia and availing the benefit of the above-mentioned Notification. However, the Assessing Officer in the present case covered by the impugned Bills of Entry allegedly did not permit the appellant to file the bills of entry under CTH 7005 1090 as the Country-of-Origin certificate contained a different CTH. Provisional release sought by the appellant was also denied. To avoid detention and demurrage charges, the appellant filed bills of entry under CTH 7005 2990 'under protest'. Aggrieved by the classification in the bills of entry and the consequential denial of notification benefit therein, the appellant preferred appeals before the Ld. Commissioner (Appeals), who rejected their appeals. Hence the present appeals before this Tribunal. 3. The Ld. Counsel Shri R. Sethu Prabakaran appeared for the appellant and Ld. Authorized Representative Shri Sanjay Kakkar appeared for the respondent. 3.1 The Ld. Counsel Shri R. Sethu Prabakaran for the appellant submitted that identical goods which were earlier imported by the appellant vide Bill of Entry No. 8520077 dated 19.10.2018 were provisionally assessed and the samples were se....
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....try is an independent responsibility of the importer, performed electronically either directly or through an authorized Customs Broker. It is unclear how assessment authorities could intervene in this electronic process or prevent the appellant from filing the Bill of Entry. c. According to Regulation 4(2), self-assessment is completed upon generation of the Bill of Entry Number following the declaration. The importer cannot subsequently object to their own declared classification in self-assessments. d. If the importer intended for the goods to be classified under a different tariff heading, they should have filed the Bill of Entry with the desired classification and sought either first-check assessment (as per the second proviso to Section 46(1) of the Customs Act) or provisional assessment (under Section 18(1)(a) ibid) and requested for testing to determine the correct classification. e. It is also submitted that a "protest" could only carry a meaning when some 'decision' has been conveyed by the proper officer for assessment to the importer. The importer could not have protested against their own self-assessment. f. At most, the said ....
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....ing authority and is duty bound to consider the issue in order to correctly assess the tax liability of an assessee. Before parting it must be said that the role of the Departmental Representative is not merely to represent revenue, but to maintain fairness and impartiality in discharging his duties as an officer of the Court and help in the administration of justice. The Hon'ble Apex Courts observations in the case of Public Prosecutors would also be applicable to them. The Apex Court in Captain Amarinder Singh Vs. Prakash Singh Badal [(2009) 6 SCC 260] held: "We are also of the opinion that the public prosecutor cannot act on the dictates of the State Government, he has to act objectively as he is also an Officer of the Court." 4.2 A three Judge Bench of the Hon'ble Supreme Court examined a similar matter in the case of ITC LTD. Vs COMMISSIONER OF CENTRAL EXCISE, KOLKATA-IV [2019 (368) E.L.T. 216 (S.C.)]. At para 43 it held: "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, as well as ass....
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....H 7005 2990 as re-classified/re-assessed by the Department in terms of Chapter Note 2(c) to Chapter 70 of Customs Tariff Act, 1975? ii. Whether the Appellant is eligible for FTA benefit under Sl. No. 934 of Notification No. 46/2011-Cus dated 01.06.2011? and iii. Whether the Orders-in-Appeal dated 17.03.2023, 28.08.2023 and 27.10.2023 of the Commissioner of Customs (Appeals), Custom House, Chennai are sustainable in denying the benefit of the exemption of the Notification No. 46/2011-Cus dated 01.06.2011 as in the Country-of-Origin Certificates, the classification of imported Clear Float Glass mentioned the HSN Code as 7005 2990? and, iv. Whether Extended Period is invokable or not considering the evidence and facts in the appeal No. 40416 of 2023? 10. We find that the appellant had imported Clear Float Glass (CFG) from Malaysia through Chennai Seaport adopting the classification under CTH 7005 1090 and availing FTA benefit under Sl. No. 934 of Notification No. 46/2011-CUS dated 01.06.2011 by furnishing the required Certificate of Origin (COO) in terms of Customs Tariff (Determination of Origin of Goods Under the Preferential Trade Agreement Betwe....
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....; 7005 10 10 ---Tinted m^2 10% - 7005 10 90 -- Other Other non-wired glass : m^2 10% - - 7005 21 ---Coloured throughout the mass (body tinted) opacified, flashed or merely surface ground : 7005 21 10 ---Tinted m^2 10% - 7005 21 90 ---Other m^2 10% - 7005 29 ---Other : 7005 29 10 ---Tinted m^2 10% - 7005 29 90 ---Other m2 10% - 7005 30 -Wired glass : 7005 30 10 ---Tinted m^2 10% - 7005 30 90 ---Other m^2 10% - Chapter Note 2(c) to chapter 70 read as follows:- "2. For the purposes of headings 7003, 7004 and 7005 : (a) glass is not regarded as "worked" by reason of any process it has undergone before annealing ; (b) cutting to shape does not affect the classification of glass in sheets ; (c) the expression "absorbent, reflecting or non-reflecting layer" means a microscopically thin coating of metal or of a chemical compound (for example, metal oxide) which absor....
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....Ld. Advocate has further submitted that it is evident from the manufacturing process explained above as well as the test report referred above, that the CFG is having a microscopically layer of metal, namely tin, which is an absorbent/non-reflective layer as contemplated in the above referred Chapter note, and it was an admitted fact in Paragraphs 11 and 12 of the Show Cause Notice. 9.6 It was further contended that though the Ld. Adjudicating Authority accepts that CFG has an absorbent layer of tin on one side, he proceeds to give a finding that such layer of tin is not the result of applying any coating on the CFG but of a natural phenomena in the manufacture of CFG which inevitably introduces tin by thermal diffusion into one side of the glass. In other words, the Ld. Adjudicating Authority tows the audit objection of CRA that the absorbent reflecting or non-reflecting layer is available only on the tin side of the CFG and not on the air side of the CFG. 9.7 The advocate would submit that, neither the tariff heading nor the Chapter Note warrants nor mandates that the absorbent reflecting or non-reflecting layer shall be on which side of the CFG. In other words,....
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....ove note 2(c) and the manufacturing process, it can be inferred that CFG would have microscopical layer of metal, namely tin, which is an absorbent layer as contemplated under the above said Chapter Note 2(c). Hence, the correct classification of the impugned goods is under CTH 7005 1090 of Customs Tariff Act. 17. We further find that the manufacturers in India of the identical goods namely M/s. Saint-Gobain India Pvt. Ltd., M/s. Goldplus Float Glass are manufacturing and clearing CFG under CTH 70051090 of the CTA and the same has been accepted by the department. 18. We further find that the impugned proceedings were initiated against the appellant on the basis of Audit Para holding that the Float Glass invariably a layer of Tin on one side, which does not mean that all Float Glass to be classifiable under 7009 1090. 19. We find that the appellant sought reply under RTI dated 17.07.2023, wherein the question was raised that it is observed that in some of the Report, no other layer other than Tin layer is found on one side of the Glass which is fluorescent is mentioned. Whether such layers are reflective or notreflective and whether such layers are absorbe....
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....ade and Industry Cooperation, Ministry of International Trade and Industry (MITI, hereinafter), stating that they had been requesting the clear float glass exporters to provide an advance ruling/document of the Government of India or from Royal Malaysian Customs confirming the correct HS code. It appears that M/s. Kibing Group (M) Sdn. Bhd. has obtained a letter from the Royal Malaysian Customs dated 12.03.2021 confirming the classification of clear float glass under HS code 7005.10.09, and therefore, MITI has allowed KGM to apply for a COO with exporting and importing HS code of 70051090. This letter goes on to state that unless M/s. Xinyi produces a similar document, their application with different exporting and importing tariff code cannot be approved." 22. Further, in the case of M/s. Chandrakala Associates (supra), again the Advance Ruling Authority has examined the issue and observed as under:- "10. I have considered all the materials placed before me for the subject goods. I have gone through the submissions made by the applicant during personal hearing. In the absence of any comment from the jurisdictional Principal Commissioner/Commissioner of Customs, o....
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....-- Other - Other non-wired glass; 700521 -- Coloured throughout the mass (body tinted) opacified, flashed or merely surface ground: 70052110 --- Tinted. It is pertinent to mention that w.e.f. 01.01.2020 (as amended vide Finance Act, 2019 and made applicable as per Notfn. 89/2019-Cus (N.T.), dated 10.10.2019), the sub-heading 700521 was amended to read as under:- "....Coloured throughout the mass (body tinted), opacified, flashed or merely surface ground.". Thus, specifically a comma was inserted in the said sub-heading. The said amendment was not given retrospective effect. 5.4.1 Chapter Note 2 of chapter 70 is reproduced below - "2. For the purposes of headings 7003, 7004 and 7005: (a) ............................ (b) .......................... (c) The expression "absorbent, reflecting or non-reflecting layer' means a microscopically thin coating of metal or of a chemical compound (for example, metal oxide) which absorbs, for example, infra-red light or improves the reflecting qualities of the glass while still allowing it to retain a degree of transparency or translucency; or which pr....
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....we hold the correct classification of the Clear Float Glass imported by the appellant under the impugned Bills of Entry is classifiable under CTH 7005 1090. Consequently, the appellant is entitled for benefit of Sl. No. 934 (I) of Notification No. 46/2011-CUS dated 01.06.2011 25. In view of this, we conclude that the impugned orders deserve no merit, hence, the same are set aside and the appeals are allowed with consequential relief, if any. " 11. In the instant case, a conjoint reading of the Tariff Heading, relevant Chapter Note, test reports and the manufacturing process would establish that there is a thin TIN layer which is absorbent and non-reflective answering the tariff heading/chapter note in the affirmative, thus meriting classification under tariff item 70051090. As rightly contested by the appellants, there is no legal prescription as to which side of the CFG should have such an absorbent, reflective/non-reflective layer. We are unable to persuade ourselves with the Revenue's contention which is based on contested CRA objection that the presence of metal layer should be by way of conscious coating and on the "Air Side" of the CFG. It is relevant to not....
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....utatis mutandis, to the above rules, on the understanding that only sub-headings at the same level are comparable. For the purposes of this rule the relative Section and Chapter Notes also apply, unless the context otherwise requires. It is important to note that the benefit of Country-of-Origin Certificate cannot be legally denied, if all the conditions in terms of Customs Tariff (Determination of Origin of Goods Under the Preferential Trade Agreement Between the Government of Member States of ASEAN and Republic of India) Rules, 2009 are satisfied. We also note that exporting country can mention on the Country-of-Origin Certificate the HSN Code of the importing country thus indicating that the HSN Code of the commodity in exporting country cannot be the sole basis for its classification under the Indian Customs Tarriff Act, 1975. During the hearing before the Tribunal, both the Ld. Counsels have informed that there are two important manufactures of Clear Float Glass in Malaysia viz. M/s. Kibing Group (M) Sdn. Bhd. (KGM) and M/s. Xinyi Energy Smart (Malaysia) Sd. Bhd. (XES). 14.2 The Ld. Counsels have informed that in respect of the first company belonging to Kibing Group ....
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....nt that as per the requirement under Rule 7(b) of DOO Rules, 2000, non-originating materials were sufficiently processed so as to result in a different classification at the 4 digit level of the Harmonized Commodity Description and Coding System. 6. In the light of the aforesaid analysis we are of the view that appellant satisfied the requirement of Country of Origin as stipulated in the DOO Rules, 2000 and therefore, was entitled to the benefit of Notification No. 26/2000-Cus. Consequently, the impugned order is not sustainable. The appeal is allowed." 14.3 As such, we hold that denial of the exemption benefit of Notification No. 46/2011-Cus dated 01.06.2011 is not justified though the Country-of-Origin Certificate mentioning the HSN Code as 70052990. The impugned Order-in-Original No. 101612/2023 dated 10.04.2023 of the Commissioner of Customs, Chennai II and Orders-in-Appeal Nos. 206 to 220/2023 dated 17.03.2023, 546-557/2023 dated 28.08.2023 and 715-733/2023 dated 27.10.2023 of the Commissioner of Customs (Appeals), Seaport Chennai cannot be sustained and so ordered to be set aside. ***** ***** ***** 16. In view of the aforesaid discussion, w....