Custom, Excise & Service Tax Tribunal
M/S. Acer India Pvt. Ltd vs Cc, Bangalore on 26 November, 2010
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing: 26/11/2010
Date of decision:26/11/2010
Appeal No.C/1233/10; Appn. No.C/ST/695/10
(Arising out of Order-in-Appeal No.47/2010 dt. 23/3/2010
passed by CC(Appeals), Bangalore )
For approval and signature:
Honble Mr. M.V.Ravindran, Member(Judicial)
Honble Mr. P.Karthikeyan, Member(Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Acer India Pvt. Ltd.
..Appellant(s)
Vs.
CC, Bangalore
..Respondent(s)
Appearance Ms. R. Mona and Shri Harish, Advocates for the appellant.
Mr. M.M. Ravi Rajendran, JDR for the Revenue.
Coram:
Honble Mr. M.V.Ravindran, Member(Judicial) Honble Mr. P.Karthikeyan, Member(Technical) FINAL ORDER No._______________________2010 Per M.V.Ravindran This stay petition is filed for waiver of pre-deposit of the following amounts:-
a. Differential duty Rs.41,01,145/- b. Interest.
2. Heard both sides and perused the records. The issue in this case is regarding the classification of the goods imported by the appellant i.e. Data Projectors. Lower authorities have classified such products under heading 9528.6900 while the claim of the assessee is under 8528.6100. After hearing both sides for some time on stay petition, we find that the appeal itself could be disposed of at this juncture and after allowing the stay petition, we take up the appeal for disposal itself.
3. Ld. Counsel submits that in the appellants own case, the co-ordinate Bench of this Tribunal at Chennai in Final Order No.1643 to 1655/09 dt. 9/11/2009 has considered the very same issue and the importer of the very same products. It is his submission that the Tribunal had allowed the appeals filed by the appellant.
4. On careful perusal of the said Final order dt. 9/11/2009, we find that the issue involved in the case before is identical as was before the co-ordinate Bench of the Tribunal at Chennai. The Bench has recorded the following order:-
3. After hearing both sides and perusal of case records, we find that as per Chapter Note 5(C) and (D) to Chapter 84, the monitors and projectors, not incorporating television reception apparatus are excluded from being classified under Heading 8471 even though they are of the kind solely or principally used in an automatic data processing system. We also find that projectors of a kind solely or principally used in any automatic data processing system of Heading 8471 are classified under sub-heading 8528.61. In fact, the impugned goods have been classified by the Original Authority in respect of 12 out of 13 cases under Heading 8528.61. Only in one case the same has been classified by the Original Authority in the residual category 8528.69. The impugned exemption Notification No.24/2005 dt. 1/3/2005 as amended during the relevant period exempts all goods falling under sub-heading 8582.61. The description under the sub-heading 8528.61 uses the expression of a kind solely or principally used. From the arguments advanced before us as well as from the details furnished, we find that the impugned projectors are principally used for data projection by being connected to either a laptop or a desktop computer. DVDs can also be played form the DVD drive of a laptop and desktop computer through the projector apart from projecting power point presentations, word files, excel charts etc. It seems to have weighed with the lower appellate authority that the projectors also had video compatibility as mentioned in the relevant catalogue. But such video compatibility does not come in the way of the impugned goods being classified under SH 8528.61 so long as the principal use of all such projectors with laptop and esktop computer systems is not doubted and as the sub-heading covers both sole use as well as principal use. Looking at the features of the impugned data projectors imported by the appellants, we have no doubt in our mind that the same merit classification under SH 852861 and automatically become entitled to exemption under Notification No.24/2005 as the same exempts all goods under the said sub-heading. Hence, we set aside the impugned order and allow all the 13 appeals. It can be seen from the above findings that the very same product has been classified under 85286100 granting exemption under Notification No.24/2005. There cannot be any different view in the same assessees case.
5. In view of the above, the impugned order is set aside and appeal is allowed with consequential relief. Stay petition also stands disposed of. (Pronounced and dictated in open court) (P.KARTHIKEYAN) MEMBER (TECHNICAL) (M.V.RAVINDRAN) MEMBER (JUDICIAL) Nr 4