TaxTMI 
TaxTMI 
2026 (10) TMI 1258
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....nue went ahead to hold that it imported goods would fall under CTA 8418 69 90. The details of re-valuation and duty demand are as per the following Table: Sl No Bill of Entry Date Declared Value Declared Duty Re-determined Value Redetermined Duty Difference in Value Difference in Duty Remark 1 4584973 27.12.2017 927484.93 259340.42 1597174.73 607301.00 669689.80 347960.58 Group assessment + Examination 2 5410601 01.03.2018 659730.40 182976.00 1102392.45 425083.00 442662.05 242107.00 Group assessment + Examination 3 5410620 01.03.2018 1183973.41 345067.00 1410222.90 548150.00 226249.49 203083.00 Group assessment + Examination 4 6584477 29.05.2018 1251476.03 348005.21 1251476.03 490877.00 0.00 142871.79 Group assessment + Examination 5 6355410 12.05.2018 699658.59 171346.39 701023.78 270315.00 1365.19 98968.61 Group assessment + Examination 6 6441198 18.05.2018 1119782.25 288888.00 1240507.29 481272.00 120725.04 192384.00 Group assessment + Examination &n....
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....ls of entry. No assessment order was passed under section 17(5) of the Customs Act 1962. 10. The respondent in their submission has clearly shown the practice of assessment of the imported goods, i.e., "Ice Making Machinery / Equipment" wherein it is clearly shown that in all over India the "Ice Making Machinery / Equipment" are being assessed under CTH 8438 80 90 and "Ice Cream Maker" are assessed under CTH 8418 69 90.The detail reference is placed at[Page No. 77 - 88 of Annexure D]of the Written Submission. 11. It is submitted that at present there is no difference of duty leviable either for Heading 8438 80 90 or for Heading 8418 69 90. Moreover, the involved duty difference amount in the present case is only Rs. 12,27,374.98/- for the six appeal petitions. It is less than the monetary limit as decided by the Board. 12. The present issue of classification of imported "Ice Making Machinery / Equipment" have been decided on three occasions by Ld. Commissioner of Customs (Appeals) vide his Order-in-Appeal bearing Nos. (a) KOL / CUS / CKP / 97 / 2012 dated 11.05.2012 in the matter of M/s. Arim Ice Cream Industries P. Ltd., (b) KOL / CUS / PORT / DC / 274 /....
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...., Commissioner of Customs vide his Review Order No. KOL/CUS/PORT/REVIEW/03/09 dated 16.01.2009 held as follows: "Milking machine and dairy machine classifiable under CTH 8434 are exempt from Addl. Duty of Customs (Countervailing Duty) in terms of C.E. Notification No. 06/2006-CE dated 01.03.2006 (Sl. No. 11). However ice cream making machinery/equipment classifiable under CTH 8438 is not exempted from the countervailing duty. The consignment of 'ice cream candy making machine' imported (June 2007 by M/s Payodhi Food Pvt. Ltd.) was classified under CTH 8434 treating the goods as 'Dairy Machine'. Scrutiny revealed that the machinery imported was a ice cream candy making machine classifiable CTH 8438 and thus was not eligible for exemption from levy of countervailing duty under above notification 06/2006-CE. The mis-classification and in correct grant of exemption benefit resulted in short levy of duty amounting to Rs. 24,66,811/-. " 16. From the report of the Chartered Engineer there is no doubt to the fact that the imported goods are correctly identifiable and classifiable as "Ice Cream Making Machine" and these are not "Ice Cream Maker" as claim....
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.... the Customs Act 1962. The relevant portion is extracted below: "Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter regarding valuation of the goods, classification exemption or concessions of duty availed consequent to any notification issued therefore under the Act and in cases other than those where the importer or the exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re assessment within fifteen days from the date of re-assessment of the bill of entry or the shipping bill as the case may be." 22. Admittedly, no Order was passed under Section 17(5). No opportunity was given to the appellant to submit documentary evidence towards their defence. Again, admittedly, the appellant paid the Customs Duty as per the revised classification and revised enhanced value. These are being taken as 'confirmation of acceptance' by the Revenue. However, factual details prove otherwise. In order to cut down the demurrage and other charges and meet immediate requirement, importers go by the revised CTA and enhanced value. Thi....
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....lant. I also find that the description given by appellant under the impugned bill of entry is neither questioned nor changed by the lower authorities after examination and finalization of assessment. Moreover, only the declared classification has been changed and the value was enhanced. In this regard, I find that the determination of tariff heading and applicable rate of duty is the ultimate job of customs authorities as has been held by Hon'ble Supreme Court in the case of HPL Chemicals Ltd vs Commissioner of Central Excise. Chandigarh as reported in 2006 (197) ELT 324 wherein it was held as follows : "29. This apart, classification of goods is a matter relating to chargeability and the burden of proof is squarely upon the Revenue. If the Department intends to classify the goods under a particular heading or sub-heading different from that claimed by the assessee, the Department has to adduce proper evidence and discharge the burden of proof. In the present case the said burden has not been discharged at all by the Revenue. On the one hand, from the trade and market enquiries made by the Department, from the report of the Chemical Examiner, CRCL and from HSN....
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....observed as under:- "8. In the instant cases, the appellant imported mixed lot of Polyester Knitted Fabric, for which they declared the value in the bills of 3 Customs Appeal No.76519 of 2018 entry. The values declared by the appellant in the impugned Bills of entry, as mentioned on previous page, were enhanced by the assessing officer. The appellant paid duty in respect of impugned Bills of entry in order to clear the goods early to avoid heavy demurrage. 9. I observe that the appellant did not receive assessment order u/s 17(5) of the Customs Act, 1962 (hereinafter, referred to as "the Act"). I note that Section 17(5) of the Act states that: "Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter regarding valuation of the goods, classification exemption or concessions of duty availed consequent to any notification issued therefore under the Act and in cases other than those where the importer or the exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re assessment within fifteen days from the date....
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.... accept the enhanced value, due to Incurring heavy demurrage etc. did not confer any right on assessing officer to determine value un-statutorily as has been held in the following decisions: i. Commissioner of Customs, ICD, New Delhi -vs- K.D. Exports [2008 (227) ELT 494 (tri-Del)]. ii. M/s. R. C. International (2009(243) ELT729 (Tri- Del)] 26. In view of the above, I set aside the enhancement of values, assess the impugned bills of entry at declared values and allow the appeals filed by the appellant with consequential relief." 6. On going through the observations made by the Ld.Commissioner(Appeals), we find that it is true that on reasons has been given by the Proper Officer for rejection of transaction value and no order has been passed under section 17(5) of the Customs Act, 1962. 7. In that circumstances, the value declared by the respondent cannot be rejected. Therefore, we do not find any infirmity in the impugned order and the appeal filed by the Revenue is dismissed. 25. Therefore, in the present Appeals, following the ratio of the cited case law, we set aside the revised classification of 8418 and the enhancement of the val....
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.... appears reasonable and well supported. 18. Further, I find that the department has relied upon heading 8418, which covers refrigerators, freezers, and other similar cooling equipment. However, the machines in question are not ordinary cooling units but are specifically manufactured for the production and delivery of soft serve ice cream and ice cubes. These are not used for general refrigeration purposes. In such cases, heading 8438, which deals with machinery for the industrial preparation of food or drink, is more specific and should be preferred over a general heading like 8418. 19. In view of the above discussion, I am of the opinion that the classification adopted by the appellant under CTH 84388090 is appropriate for the goods in question. The machines are complete units meant for food preparation and vending, and are not general-purpose cooling devices falling under CTH 84186990. Accordingly, I hold that the impugned classification under CTH 84186990 is not sustainable. Therefore, the impugned Order-in-Original is set aside and the appeal filed by the appellant is allowed with consequential relief. 28. It is clear that the Commissioner (Appeals) has gon....
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....er to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which, performs the principal function "4. Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in Chapter 84 or Chapter 85, then the whole falls to be classified in the heading appropriate to that function." Perceived from the aforesaid viewpoint/statutory interpretation vis-à-vis the catalogue and technical literature in respect of the impugned goods, I find that the imported goods are correctly classifiable under tariff item 843880 90 in terms of Notes 3 and 4 to Section XVI of the Customs Tariff Act, 1975, particularly when it is a composite ice-cream making machine and that the imported continuous freezer is an integral part of the complete ice-cream making machine. The decision of Hon'ble CESTAT in the....
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....Customs (Gr. VA) vide his order no. KOL/CUS/DC/5A/12/2008A dated 30.07.2008 confirmed the assessment of ice-cream making machinery/equipment under heading 8434.20.00 and department approved the said order. However when CRAD raised the objection in this regard, Commissioner of Customs vide his Review Order No. KOL/CUS/PORT/REVIEW/03/09 dated 16.01.2009 held as follows: "Milking machine and dairy machine classifiable under CTH 8434 are exempt from Addl. Duty of Customs (Countervailing Duty) in terms of C.E. Notification No. 06/2006-CE dated 01.03.2006 (Sl. No. 11). However ice cream making machinery/equipment classifiable under CTH 8438 is not exempted from the countervailing duty. The consignment of 'ice cream candy making machine' imported (June 2007 by M/s Payodhi Food Pvt. Ltd.) was classified under CTH 8434 treating the goods as 'Dairy Machine'. Scrutiny revealed that the machinery imported was a ice cream candy making machine classifiable CTH 8438 and thus was not eligible for exemption from levy of countervailing duty under above notification 06/2006-CE. The misclassification and in correct grant of exemption benefit resulted in short levy of ....
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....hanced value. Some of the relevant portions are reproduced below: 27. Accordingly, as per the discussions made above and the judicial decisions cited supra regarding the classification of the imported goods are squarely applicable in the instant appeals. As such, I hold that the goods so imported merit the classification under 8438.80.90 as declared by the appellant. Also, I set aside the classification as done by the lower authority without any cogent and definitive reasoning. 28. Further, I also find that the appellant imported "Ice-Cream Machine & Spare Parts" for which they declared the value in the bills of entry. The values declared by the appellants in the impugned bills of entry were enhanced by the assessing officer in accordance with the change in classification of the goods as imported by the lower authority. The appellant paid duty in respect of impugned Bills of entry in order to clear the goods and also requested assessing officer for passing of speaking order. However, no speaking order regarding assessment at enhanced values was passed by the assessing officer. 29. In the instant appeal, the appellant also submits that the lower authority ....
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....STAT held as follows: "All that is available on record are the assessed bills of entry without any speaking order commuting the rationale adopted by the 'proper officer' to paper. Consequently, we are deprived of wisdom of the 'proper officer' in reaching the conclusion that the value be enhanced to US$ 3050. Therefore, no purpose would be served by directing that lack be made good now as the 'proper officer' may not, in all probability, be available to do so. It is, therefore, left to us to deal with the resolution of this dispute without this constituent." 35. In the instant case it is undisputed that the goods in question had been imported from an exporter/manufacturer and the invoice was raised by them. This position has neither been denied nor disputed by the department. It is well settled position in law that the invoice should not be doubted unless the same is found as fake or not genuine. I find that Hon'ble Supreme Court in the case of Eicher Tractors Ltd. vs. Commissioner of Customs, Mumbai [2000 (122) E.L.T. 321 (S.C)] has held as under: 38. I find that that no grounds were given by the assessing officer in respect o....
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....e without any evidence, document or material is violation of Section 14 of the act. The appellant declared the transaction value and there is nothing on record to suggest that the transaction value declared by the appellant was not the price actually paid for the goods when sold for export to India. There is nothing on record that the buyer and seller of the goods were related or price was not the sole consideration for sale. Also the department has not adduced any evidence that any amount over and above the invoice price was paid by the appellant to the foreign supplier of the imported goods. In view of the above, I find that the rejection of declared value without cogent and justified reasons and its enhancement is not sustainable and hence liable to be set aside. 46. I also observe that the appellant did not receive assessment order under section 17(5) of the Customs Act, 1962. I note that Section 17(5) of the Act states that: "Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter regarding valuation of the goods, classification or concessions of duty availed consequent to any notification issued ....
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....p their shortcomings at the initial stage when the re-classification and re-valuation was taken up. 45. In view of our foregoing observations on the valuation aspect, we fully concur with the findings of the Commissioner (Appeals) and do not find any reason to interfere with the same. 46. To Summarize: (a) Non-following of principles of natural justice for arriving at the enhanced value and re-classification of goods by issuing Order under Section 17(5) proves fatal to the Revenue's case. (b) The Revenue cannot pick and choose the course of further appeal filing in respect of the same goods, by not filing Appeals in some case citing National Litigation Policy and filing the appeals in some other cases. This shows that Revenue has no fixed Policy as to what is to done in which case. (c) Total confusion prevails so far as the classification of the goods in question is concerned. In 2008, 2012, 2018 and 2025 the Revenue has classified the goods in question under CET 8438 and in the present imports during 2017-2018 they have classified the same under CET 8418. In such a scenario of confusion, the benefit of such confusion goes to the appellant. Hence, w....