Custom, Excise & Service Tax Tribunal
Allied Electronics & Magnetics Ltd vs Cc (Exports), New Delhi on 2 January, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing/Decision: 2.1.2017
Appeal No. C/51830-51834/2015/CU.(DB)
(Arising out of Order-in-Appeal No. C(A) CUS/D-I/EXP/118 to 122/2015 dated 30.1.2015 passed by the Commissioner of Customs (Appeals), New Delhi)
Allied Electronics & Magnetics Ltd. Appellant
Vs.
CC (Exports), New Delhi Respondent
Appearance Shri Vijay Kumar, Advocate - for the appellant Shri Amresh Jain, D.R. - for the respondent CORAM: Honble Mr. Justice (Dr.) Satish Chandra, President Honble Mr. Ashok K. Arya, Member (Technical) Final Order No. 50053-50057/2017 Per Justice Dr. Satish Chandra:
All the five appeals have been filed against the Order-in-Appeal No. 19-23/2014 dated 5.2.2015 passed by the Commissioner (Appeals).
2. The brief facts of the case are that the appellant had imported the micro SD cards from M/s Wintek Enterprises Ltd. The importer claimed classification under CTH 85235100 of the First Schedule to the Customs Tariff Act, 1975, as Micro SD cards are flash memory cards used in electronic devices like mobile phones, cameras, etc., classified as solid state non volatile storage devices under CTH 85235100 and assessed to Nil rate of CVD under Central Excise Notification NO. 6/2006-CE (Sr. No. 17). But the department has not accepted the contention of the appellant and demanded the duty. Being aggrieved, the appellant has filed the present appeals.
3. During the course of arguments, ld. Counsel for the appellant drawn our attention to the Boards Circular No. 12/2012-Customs dated 1st May 2012 where para 6 is as under:
6. In view of the aforesaid, Board is of the considered view that in case of Micro/Mini SD Cards wherein the PCB is substituted by substrates, then such substrates fully comply with the definitions of printed circuits found in the Harmonized System and the qualifies as a printed circuit board and connecting pins qualifies as connecting sockets for purposes of Note 4(a) to Chapter 85. As such, Micro/Mini SD Cards are correctly classified in sub-heading 8523.51 as Semiconductor media, solid-state, non-volatile data storage devices by application of General Rules for interpretation of import Tariff (GRIs) (Note 4(a) to Chapter 85) and 6.
4. Ld. Counsel submits that the authorities below have not accepted the above mentioned circular by stating that it is clarificatory in nature, so, it is not applicable retrospectively.
5. On the other hand, ld. DR has relied on the order of the lower authorities.
6. By considering the totality of facts and circumstances of the case, it may be mentioned that the circular having the clarificatory in nature is applicable retrospectively as per the ratio laid down by the Honble Supreme Court in the case of Suchitra Components Ltd. Vs. CCE 2007 (208) ELT 321 (SC) 2007 (208) ELT 321. Further, in the case of Commissioner Vs. Mysore Electricals Industries Ltd. 2006 (204) ELT 517 (SC) it was observed that the beneficial circular has to be applied retrospectively while oppressive circular applicable prospectively. In the instant case, the circular having clarificatory is beneficial to the assessee so, it is applicable with retrospective effect. Hence, we set aside the impugned order and remand the matter to the original authority to decide the issue de novo on merit but in the light of above clarificatory circular (supra) dated 1st May 2012. An opportunity of hearing to the appellant may be provided. Additional evidence can be admitted as per law.
7. In the light of the above, all five appeals filed by the appellants are allowed by way of remand.
(Dictated & pronounced in open Court) (Justice Dr. Satish Chandra) President (Ashok K. Arya) Member (Technical) RM 4 C/51830-51834/15