Commissioner Of Customs (Port), ... vs M/S. Sigma Construction
- CitationCustoms Appeal No.- 264/2009
Ratio decidendi
The rule this decision rests on
The order of the first appellate authority, which set aside the levy of countervailing duty and directed a fresh decision on whether the imported articles, taken together, constitute a kit that is not leviable to countervailing duty, cannot stand where the assessing officer has passed no reasoned speaking order on the classification of the goods; the classification of the imported goods must first be determined by a reasoned order before any question of exemption from countervailing duty is taken up. An importer who has declared goods under one classification in a bill of entry cleared under the Risk Management System may seek to establish, on documentary evidence, that the goods are in fact of a different description and fall within a different heading; the burden of justifying the claimed classification with documentary evidence rests on the importer. Where the goods are claimed to be a kit, the question whether the individual articles, when imported, are chargeable to countervailing duty independently of the kit, and whether the principles of the decisions relied upon by the parties apply to them, must be decided by the assessing officer in the remand proceedings and not by the appellate authority. The assessing officer must afford the importer an opportunity of personal hearing before deciding the matter in remand proceedings.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Stay Petition No.SP-804/14 & Customs Appeal No.- 264/2009 (Arising out of the order in Appeal No. KOL/CUS/CKP/81/09 dated 25.02.2009 passed by the Commissioner of Customs (Appeals), Kolkata)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER SHRI H.K.THAKUR, HONBLE TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities?
Commissioner of Customs (Port), Kolkata. APPLICANT(S) VERSUS M/s. Sigma Construction ...RESPONDENT (S)
APPEARANCE:
SHRI M.Singh, Addl.Commr. FOR THE Revenue SHRI B.N.Pal, Advocate for the Respondent
CORAM:
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER SHRI H.K.THAKUR, HONBLE TECHNICAL MEMBER
Date of Hearing: 30.09.2015 Date of Decision: 30.09.2015
ORDER NO FO/A/75544/15
Per Shri H.K.Thakur
This stay application and appeal has been filed by the Revenue against OIA No. KOL /CUS/CXP/ 81/09 dt 25/02/2009 passed by commissioner (A) Kolkata. Under this OIA dt 25/02/2009 first appellate authority has remanded the matter to the Adjudicating authority to examine whether or not CVD is Leviable on the goods described in the B/E on certain parts imported & claimed by importer under CTH/CETH85359090 in the light of CBEC Circular No. 583/20/2001-CX dt 20/08/2001.
2. Sh. M. Singh Add Commissioner (AR) appearing on behalf of the Revenue argued that appellant filed one B/E No. 441168 dt 11/11/08 for home consumption for clearance of 45 pcs of goods classifiable under CET 85359090 and did not declare the goods as cable jointing kit. That the said B/E was cleared through RMS and no assessment / examination of the imported goods was done. That Commissioner (A) has wrongly remanded the matter for denovo Adjudication by directing to carry out certain verification. It the case of the Revenue that importer never asked for amendment of classification in the bills of entry. That in the absence of goods and possibility of examination of the goods no determination of correct classification is not feasible.
3. Sh. B.N Pal (Advocate) appearing on behalf of the Respondent argued that there is no bar that an importer can not seek modification of classification by contesting the classification the importer made initially under RMS Clearances. That even if the goods are not physically available appellant will be able to establish with catalogue & other literature that what was imported was cable jointing kits to which CBEC Circular No. 583/20/2005 CX dt 20/08/2001 will be applicable.
4. Heard both sides & perused the case records. The issue involved in there proceedings is whether or not goods imported by the Respondent under B/E No. 441168 dt 11/11/08 under RMS procedure, were cable Jointing kits not leviable to CVD as per CBEC Circular No. 583/20/2001-CX dt 20/08/2001 issued from F. No. 151/18/96-Ex-4. First appellate authority has held that the goods imported were described as cable jointing kits which is being contested by the Revenue that description in the B/E was given on the basis of product code & not as cable jointing kit. It is also the case of the Revenue in the grounds of appeal that classification of the imported goods was claimed by the Respondent under CTH/CETH 85359090 & not as cable Jointing kit under CTH/CETH 8547.
4.1 Commissioner (A) in his remand order dt 25/02/2009 has made following observations in Para- 7 while remanding the case:-
I, therefore, set aside the levy of countervailing duty imposed on the imported goods so that a decision afresh can be taken by the lower authority. The lower authority shall examine the goods and if it is so found that the kit comprises individual articles which when put together as a kit does not result in the manufacture of goods, then no countervailing duty shall be paid. On the other hand, if it is so held that the goods get manufactured, then countervailing duty shall be payable. The lower authority shall, after ascertaining this fact, pass appropriate order.
The appeal is allowed by way of remand.
5. It is observed from the copy of B/E No. 441168 dt 11/11/08 that description of imported goods given is not Cable Jointing kits but described as some coded parts. It is not coming out of the case records whether all the items imported under the said bill of entry could be termed as cable Jointing kit when taken collectively. Respondent had to justify with documentary evidence that the goods imported were in fact Cable Jointing kit falling under CTH / CETA 85.47. After deciding the classification of the imported goods it is also required to be examined whether the ratio of case law M/S XL Telecom Ltd & others decided by Adhra Pradesh High court and the case law of M/s REPL & others dismissal by Supreme Court will be applicable to imported goods. Even if placing all the imported articles in one kit (as Cable jointing kits) does not amount to manufacture, whether the ratio laid down by the courts debar charging of CVD on individual articles as such when imported. In the interest of Justice the order passed by the first appellate authority is set aside and the case is required to be remanded back to the assessing officer as no speaking assessment order has been passed by the Lower authority on the issue of classification of imported goods.
6. In view of the above observation the case is remanded back to the assessing officer to pass a reasoned Speaking order deciding the correct classification of the imported goods first before taking up the issue of exemption from CVD. Needless to say that Respondent should be given an opportunity of personal hearing before deciding the case in remand proceedings.
7. Appeal filed by the Revenue is allowed by way of remand to the assessing officer. SP filed by the Revenue is also disposal off.
(Pronounced in the court on ..)
(D.M.MISRA) (H.K. THAKUR) JUDICIAL MEMBER TECHNICAL MEMBER
Tushar kumar
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free