Custom, Excise & Service Tax Tribunal
C.C., New Delhi vs M/S. Jet Cartridge India Pvt. Ltd on 9 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066
Date of Hearing: 09.11.2016
For Approval & Signature of:
Honble Mrs. Archana Wadhwa, Member (Judicial)
Honble Mr. V. Padmanabhan, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Appeal No.C/51576/2014-CU[DB]
[Arising out of Order-in-Appeal No.CC(A)CUS/628/2013, dated 31.10.2013 passed by the C.C.(Appeals), New Delhi]
C.C., New Delhi Appellant
Vs.
M/s. Jet Cartridge India Pvt. Ltd. Respondent
Appearance Mr. Govind Dixit, DR - For the appellant Ms. Asmita A Nayak - For the respondent CORAM: Honble Mrs. Archana Wadhwa, Member (Judicial) Honble Mr. V. Padmanabhan, Member (Technical) Final Order No.55195/2016, dated 09.11.2016 Per Mrs. Archana Wadhwa :
Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present appeal.
2. After hearing, both sides duly represented by Mr. Govind Dixit, ld. Departmental Representative and Ms. Asmita Nayak, ld. advocate for the respondent, we find that the appellant is regularly importing multi functional printer parts for cartridges and filing Bills of Entry by classifying the same under the Heading 8443 99 54. The said Bills of Entry being filed by the assessee were accepted by the Customs and the items were being cleared.
3. However, in respect of subsequent Bills of Entry dated 10.03.2013, Revenue entertained some doubts about the classification of the product in respect of the Bill of Entry dated 31.10.2012, the goods were classified under heading 8443 90 90, attracting higher rate of duty and initiated proceedings against the respondent.
4. Accordingly, a Show Cause Notice dated 02.05.2013 was issued to the respondent proposing to classify the goods under the heading 8443 90 90. Similarly in respect of Bill of Entry, the value of the product was also proposed to be enhance from Rs.3.66 to Rs.9.51 per piece. Accordingly noticed proposed to confirm the differential duty of Rs.93,989/- along with confirmation of interest and imposition of penalties, etc.
5. The said Show Cause Notice was adjudicated by the Asst. Commission, who neither accepted the classification claim of the assessee nor adopted the proposed classification under heading 8443 90 90. He adopted an altogether different classification of the goods as falling under the heading 8443 99 90 and accordingly confirmed the demand and imposed penalties, etc.
6. On appeal against the above order, Commissioner (Appeals) observed that adoption of third classification by the adjudicating authority, which was never proposed in the Show Cause Notice is deciding the dispute incorrectly by going beyond the scope of the Show Cause Notice. He also observed that Show Cause Notice proposed a non-existing heading 8443 90 90. He further observed that in as much as the previous Bills of Entry filed by the assessee were assessed under the heading 8443 99 59 as claimed by them, he has no option but to set aside the impugned order regarding classification and in view of the said observation regarding the improper allegation made in the Show Cause Notice, the dispute stands nullified per se and therefore the classification under CTH 8443 99 59 and consequent rate of duties stand unchallenged. Aggrieved by this, Revenue filed the present appeal.
8. Ld. Departmental Representative has drawn our attention to the fact that in spite of repeated requests made to the importer for production of catalogue, the same was never provided by the importer. He also draws our attention to the impugned order of the Asst. Commissioner, wherein he has relied upon the e-mails downloaded from the internet so as to discuss the technical features of the goods in question. However, he fairly agrees that such conduct of the adjudicating authority was not proper. He also submits that the adjudicating authority before adopting the classification under CTH 8443 90 90 should have issued proposal to do the same, to the importer. So as to all upon his comments as such he agrees that the Asst. Commissioners order is not correct. On being questioned as to whether Revenue has filed any appeal against the said order of the Asst. Commissioner, ld. advocate submits that in as much as the said order has merged with the Order- In- Appeal, and Revenue has filed appeal against the order of the Commissioner (Appeals) it has to be understood that the order of the adjudicating authority stands challenged by Revenue.
9. Countering the above prayer, ld. advocate submits that it is factually incorrect that the catalogue was not placed before the adjudicating authority. Scrutiny of the reply filed before the Dy. Commissioner clearly revealed that the same was placed. He also submits that if Revenue is aggrieved, they should have separately challenged the order of the original adjudicating authority. At this stage, they cannot adopt theory of merger in as much as Commissioner (Appeals) order stands passed in their favour on an appeal filed by the assessee and not by the Revenue. She further submits that appellate authority has rightly observed in as much as there was no proposal to adopt CTH 5884 99 90, it was not open to the adjudicating authority to adopt a heading which was not proposed in the Show Cause Notice. For this proposition she relies upon the decision of Tribunal in the case of NTB International Pvt. Ltd. Vs. CCE, Mumbai [2013 (296) ELT 271 (Tri.-Del.)], wherein it was clearly observed that Commissioner (Appeals) has no powers to travel beyond the Show Cause Notice and classify the product under an altogether different heading, which was not proposed in the Show Cause Notice. She also relies upon the decision of Honble High Court of Karnataka in the case of CCEST, Belgaum Vs. Swarnagiri Wire Insulations Pvt. Ltd. [2014 (301) ELT 46 (Kar.)], wherein it was observed that the adjudication order cannot travel beyond the Show Cause Notice without there being any proposal in the Show Cause Notice to that extent and such an order cannot be held sustainable.
10. After carefully considering the submissions of both sides, we are of the view that Revenues appeal can be disposed of on the short issue. There is no doubt as regards the factual position. The respondents claimed heading A at the time of import of goods, which heading was being accepted by the Customs authority for the previous imports. However, in a subsequent import, Show Cause Notice was issued to the importer deviating from the earlier products and proposing to adopt a different heading B. During adjudicating, the original adjudicating authority neither adopts A nor B and decides the classification under an altogether different classification C, which was never proposed in the Show Cause Notice.
12. IN the above factual background, we are of the view that the Tribunal decision in the case of NTB International Pvt. Ltd. Vs. CCE, Mumbai (supra) which in turn has relied upon precedent decisions of the Tribunal mentioned therein, is fully applicable to the facts of the present case. As such, on this short ground itself, we find no infirmity in the impugned order of the Commissioner (Appeals). Revenues appeal is accordingly rejected.
(Archana Wadhwa) Member (Judicial) (V. Padmanabhan) Member (Technical) SSK -2- -2-