TaxTMI 
TaxTMI 
2025 (11) TMI 1219
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssifiable under CTI 3822 0090 as 'Other' residual entry, but incorrectly mentioned as "All goods originating from USA" as determined by the Assistant Commissioner of Customs, and upheld by the learned Commissioner of Customs (Appeals) in the impugned order, for deciding on the appropriate levy of customs duty. 3.1 Briefly stated, the facts of the case are that the appellant herein, had imported 'In-Vitro Diagnostic Reagents' from M/s Biomerieux S.A., Craponne, France by filing Bill of Entry (B/E) No. 5621432 dated 11.11.2019. In the said B/E, the appellant had declared the description of imported goods as 'VITEK MS-DS Medical Diagnostic Reagents' by classifying it under Customs Tariff Item (CTI) 3822 0019 of the First Schedule to the Customs Tariff Act, 1975, with country of origin declared as 'United States of America' (USA). These imported diagnostic reagents were meant for medical diagnosis as kits. It was the contention of the department that since the appellant had imported goods originating from USA, which have been separately classifiable under CTI 3822 0090 which clearly reads as "All goods originating from USA", these are chargeable to Basic Customs Duty (BCD) at 30% ad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 15.06.2019 and extract of relevant Chapter 38 of the departmental tariff produced by him. Therefore, he submitted that the description of the goods for the tariff item 3822 0090 had been incorrectly quoted as "All goods originating in USA" in the impugned order instead of correct description as "--- Others". Therefore, he claimed that the impugned order is bad in law and claimed that it is liable to be set-aside on this ground itself. 4.2 Learned Advocate further submitted that in the appellant's own case for classification of same goods i.e., "In- Vitro Diagnostic Kits" at Chennai Air Cargo Complex, the Commissioner of Customs (Appeals-I) vide Order-inAppeal dated 27.11.2023 has held its classification under CTI 3822 0019. Further, the said order has been accepted by the department upon its review on 19.02.2024, and no appeal has been filed against such classification of impugned goods, as informed vide RTI reply of the department dated 08.07.2024. 4.3 He further submitted that in terms of the import licence dated 06.11.2019 issued by the Central Drugs Standard Control Organisation under the Directorate General of Health Services, Ministry of Health & Family Welfare (Medi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Certified reference materials" of USA origin irrespective of their various sub-headings classification/ use of medical and non-medical etc. will fall specifically under CTH 3822.00. 90, for which the Notification No.50/2017 dated 30.06.2017 S. No.249A (as amended by Notification No.16/2019-Customs attracting BCD at 30%. xxx xxx xxx xxx 11. I, therefore, find the Original authority vide his impugned order has rightly held that all the goods originating from USA falling under CTH 3822 are correctly and separately classifiable under CTH 3822.00.90 and as per S. No.249A of Notification No.50/2017-Cus dated 30.06.2017 as amended by Notification No.16/2019-Cus. dated 15.6.2019/ Notification No.17/2019-Cus. dated 15.6.2019, attracts merit rate of duty @ 30% BCD." On perusal of the impugned order passed by the learned Commissioner of Customs (Appeals), and on plain reading of the Notifications No.16/2019 and No.17/2019 both dated 15.06.2019, it is clear that there is no proposal therein for changing the description of the goods covered under any of the tariff item under chapter heading 3822. The rate of duty has been revised upwards to 30% vide Notifications No.16/201....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... final, then the department is not entitled to raise the same point in other cases. The department cannot pick and choose. [See: The decisions of this Court in Union of India v. Kaumudini Narayan Dalal - (2001) 10 SCC 231; Collector of Central Excise, Pune v. Tata Engineering & Locomotives Co. Ltd. - 2003 (158) E.L.T. 130 (S.C.) ; Birla Corporation Ltd. v. Commissioner of Central Excise - 2005 (186) E.L.T. 266 (S.C.)(S.C.); and Jayaswals Neco Ltd. v. Commissioner of Central Excise, Nagpur - 2006 (195) E.L.T. 142 (S.C.). It has been held in all these cases that if no appeal is filed against an earlier order or the earlier appeal involving the identical issue was not pressed by the Revenue, the Revenue is not entitled to press the other appeals involving the same question. In Birla Corporation Ltd. (supra), this Court observed as follows : "In the instant case the same question arises for consideration and the facts are almost identical. We cannot permit the Revenue to take a different stand in this case. The earlier appeal involving identical issue was not pressed and was, therefore, dismissed. The respondent having taken a conscious decision to accept the principles laid d....