Custom, Excise & Service Tax Tribunal
Kolkata(Port) vs Hi Tech Cellphone Pvt Ltd on 31 July, 2024
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL,
KOLKATA
REGIONAL BENCH - COURT NO.1
Customs Appeal No.75168 of 2019
(Arising out of Order-in-Appeal No.Kol/Cus(Port)/AA/1850-1852/2018 dated
04.10.2018 passed by Commissioner (Appeals) of Customs, Kolkata)
Commissioner of Customs (Port), Kolkata
15/1, Strand Road, Kolkata-700001
Appellant
VERSUS
M/s Hitech Cellphone Private Limited
118, Karl Marx Sarani, 3rd Floor, Khidderpore, Kolkata-700023
Respondent
WITH Customs Appeal No.75171 of 2019 (Commissioner of Customs (Port), Kolkata Vs. M/s Hitech Cellphone Private Limited) Customs Appeal No.75172 of 2019 (Commissioner of Customs (Port), Kolkata Vs. M/s Hitech Cellphone Private Limited) (Arising out of Order-in-Appeal No.Kol/Cus(Port)/AA/1850-1852/2018 dated 04.10.2018 passed by Commissioner (Appeals) of Customs, Kolkata) APPERANCE :
Shri A.K.Choudhary, Authorized Representative for the Appellant Shri S.C.Ratho, Consultant for the Respondent CORAM:
HON'BLE MR.ASHOK JINDAL, MEMBER (JUDICIAL) HON'BLE MR.K.ANPAZHAKAN, MEMBER (TECHNICAL) FINAL ORDER NO.76591-76593/2024 DATE OF HEARING : 31 .07.2024 DATE OF DECISION : 31.07.2024 Per Ashok Jindal :
The Revenue is in appeal against the impugned order. As a common issue is involved in all the appeals, therefore, all are being taken up for final disposal by a common order.2
Cusetoms Appeal No.75168,75171,75172 of 2019
2. The facts of the case are that the respondent is a registered unit of Central Excise to clear the imported components at a concessional rate of duty. The respondent imported three consignments of parts for manufacture of mobile handsets from Hong Kong and filed three Bills of Entry. The respondent is registered with the jurisdictional Assistant Commissioner of Central Tax, Sankrail Division, Howrah. The bond under the Customs (Import of Goods at concessional Rate of Duty) Rules, 2017 read with Notification No.57/2017-Cus dt. 30.06.2017, Serial No.6 of the said notification, furnished by the respondent and the same was accepted by the adjudicating authority who certified that the benefit under the cover of this bond is exclusively available for parts of mobile handsets.
2.1 Accordingly, the respondent claimed benefit under Notification No. 57/2017-Cus dt. 30.06.2017, Serial No. 6. However, a query was raised by the assessing group stating that the goods on examination was found to be charger for mobile phone in CKD condition and if the parts are assembled they make a complete charger for mobile. The respondent asked to clarify why the same should not be classified as complete charger and why the notification claimed should not be denied.
2.2 The respondent replied that they are the manufacturer of mobile charger and mobile handsets under the brand name 'HITECH' under IS specification 13252(Part-1), 2010 and having registered factory situated at Sankrail, Howrah, wherein the parts imported undergo various process of manufacturing activities. A detailed process of manufacturing activities was explained.3
Cusetoms Appeal No.75168,75171,75172 of 2019 2.3 Without considering the submissions, the Bills of Entry were assessed by classifying the goods under Customs Tariff Hearing 85177090 as per Rule 2 of General Rule of Interpretation and the denied the benefit of Notification No.57/2017-Cus dt. 30.06.2017, Serial No.6 as claimed by the respondent.
2.4 Aggrieved from the said order, the respondent filed appeal before the ld.Commissioner (Appeals), who held in favour of the respondent.
After examining the issue, he held that the respondent is entitled for the benefit of Notification No. 57/2017-Cus dt. 30.06.2017, Serial No.6.
Consequently, he set aside the adjudication order by observing that the goods were classified as declared by the respondent and the benefit of the notification was not given to the respondent.
2.5 Aggrieved from the said order, the Revenue is before us.
3. The ld.A.R. for the Revenue submits that the ld.Commissioner (Appeals) has failed in error. The goods in question were incomplete goods when they are presented before the Customs for clearance and they are having an essential character of complete goods, therefore, they are to be classified as complete goods. If all the parts are presented in CKD condition and they have the essential character of a complete article as held by the Hon'ble Apex Court in the case of Procal Electronics India Limited Vs. Commissioner reported in 2005 (185) ELT A-58 (SC). Therefore, the impugned goods are to be classified under CTH-85177090 and the respondent is not entitled for the benefit of the Notification.
4. On the other hand, the ld.Consultant for the respondent, submitted that after passing the order under Section 17 (4) of the 4 Cusetoms Appeal No.75168,75171,75172 of 2019 Customs Act, 1962, wherein the classification have been changed and the benefit of the Notification was denied, but no order has been passed under Section 17 (5) of the Customs Act, 1962 within 15 days from passing of the order of the proper officer, therefore, the order passed by the proper officer enhancing value, denying the benefit of the Notification and the changing classification is not sustainable.
Moreover, it is his submission that the ld.Commissioner (Appeals) has passed the order on merit and he has rightly observed in view of CBEC Circular No.39/2005 dated 03.10.2005, which clarified that the goods has to be classified in the form as presented and Rule 2 (a) of the General Interpretation Rules cannot be applied for the sake of allowing/disallowing the benefit of a Notification unless the exemption notification is based on the classification of the item under a particular heading of the Customs Tariff.
5. Heard the parties and considered the submissions.
6. We find that the respondent is a manufacturer of mobile charger and mobile handsets and registered with the Central Excise Department and obtained a Certificate in the terms of Notification No.57/2017-Cus dt. 30.06.2017, Serial No.6.
7. With regard to the import of the goods in question, the facts are not in dispute. The Revenue alleges that the parts which are declared by the appellant are known other than mobile charger in CKD condition.
Therefore, the benefit of Notification No. 57/2017-Cus dt. 30.06.2017, Serial No.6, has been denied to the respondent. The said observations made in Rule 2(a) of the General Interpretation Rules, are that if the 5 Cusetoms Appeal No.75168,75171,75172 of 2019 goods are imported in CKD condition, the same are declared as parts, which are components in CKD condition and having essential character of finished goods. Therefore, the goods are to be assessed as complete goods.
8. We find that the Circular No.39/2005-Cus dated 03.10.2005, was issued, which are reproduced as under :
"Circular No. 39/2005-Cus., dated 3-10-2005 F. No. 528/117/2003-Cus(TU) Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi Subject : Extension of benefit of Notification 21/2002- Cus., dated 1-3-2002, Sl. No. 276, to Computer Casing and Power Supply Unit imported together - Reg.
I am directed to say that a dispute regarding the extension of benefit of Notification 21/2002-Cus., dated 1-3-2002, Sl. No. 276 to computer casing and power supply unit imported together, has been brought to the notice of the Board.
2. Under Sl. No. 276 (which has subsequently been withdrawn w.e.f. 1-3-2005) of the CN. 21/2002-Cus., dated 1-3-2002, all parts of the machines of heading 8471, other than PPCB's, motherboards and power supply units attracted a concessional rate of duty @ 5%. In case the computer casing/chassis is pre-fitted with the power supply unit, it was not eligible for the benefit of the said entry of the notification and the rate of basic customs duty on the same use to be 15%. However, some importers had imported the chassis and the power supply as separate 6 Cusetoms Appeal No.75168,75171,75172 of 2019 units in the same consignment. These units were meant to be fitted together after the clearance thereof, but in the form as presented, these were not assembled. The point of dispute is whether in cases where computer casing/chassis and power supply unit were imported in a form not fitted together as an assembly, but separately in the same consignment, the benefit of Notification No. 21/2002-Cus., dated 1-3-2002, (vide S. No. 276) can be denied by applying rule 2(a) of the General Rules for the Interpretation of the First Schedule (GIR).
3. This matter was discussed in the Tariff Conference of Chief Commissioners of Customs held at Visakhapatnam on 25th and 26th September, 2003[Agenda Item A-17].
4. The Conference noted that there are several rulings of CESTAT that for the sake of denial of the benefit of a notification, Rule 2(a) cannot be invoked.
5. The Board had accepted the decision of the Conference. Accordingly, it is clarified that the goods have to be classified in the form as presented and rule 2(a) of the GIR cannot be applied for the sake of allowing/disallowing the benefit of a notification, unless the exemption notification is based on classification of the item under a particular heading of the Customs Tariff. For the purpose of classification, Rule 2(a) of the General Rules of Interpretation could be applied.
6. The field formations may finalize the pending assessments, if any, accordingly.
7. Please acknowledge receipt of this circular.
8. Hindi version will follow.
X 7 Cusetoms Appeal No.75168,75171,75172 of 2019 The said Circular clarified that the goods have to be classified under the form as presented and Rule 2 (a) of the General Interpretation Rules, cannot be applied for the sake of allowing/disallowing the benefit of a Notification, unless the exemption Notification is based on the classification of the item under a particular heading of the Customs Tariff. Admittedly, the Notification No.57/2017-Cus dt. 30.06.2017, is not based on the classification and it gives exemption to the respondent to manufacture of the mobile charger/mobile handsets on production of Certificate by the jurisdictional Commissionerate.
9. In that circumstances, we hold that Rule 2 (a) of the General Interpretation Rules, is not applicable to the facts and circumstances of the case. The ld.Commissioner (Appeals) has rightly observed as under
:
"23. I also find that the goods as imported by the appellant are not in complete nature and require a manufacturing process in order to obtain the entire charger. In this regard, the appellant also place reliance on the case of Commissioner of Customs, Goa vs. D-Link India Pvt. Ltd. reported in 2014(306)ELT 479 (Tri.-
Mumbai). In this case, electronic parts/components namely resistors, inductors, chips, codecs, driver Cds, labels, heat sinks, capacitors etc of mother boards, modems, first Ethernet adaptors and Ethernet cards were imported. SCN was issued that these goods are to be appropriately classifiable as finished mother boards modems etc in un-assemble form by applying Rule 2(a) of GIR alleging that the activates undertaken by the respondents assembling with screw driver technology. Hon'ble CESTAT in the said case held as follows:
"11. We find that Revenue wants to classify the parts imported by the respondent as unassembled or disassembled articles and to classify under their respective headings, namely integrated 8 Cusetoms Appeal No.75168,75171,75172 of 2019 circuits under Heading 85.42, Diodes, resistors, etc. under Heading 85.41, printed circuit boards under Heading 85.34 by virtue of application of Section Note 2(a) of the General Rules for Interpretation. Revenue heavily relied upon the provisions of Note 2(a) of the General Rules for Interpretation of Customs Tariff Act. We find that HSN Explanatory Notes, Rule 2(a) covers the complete or finished articles presented in unassembled of disassembled condition and the same is to be classified in the same heading as the assembled article. It is usually for reasons such as requirements or convenience for handling, transportation and packing. The rule further provides that articles presented in unassembled or disassembled condition means articles, the components of which are to be assembled either by means of simple fixing devices or by reveting or welding for only simple assembly operations are involved. The Notes further provides that components shall not be subject to any further working to form complete into finished article.
12. In the present case, the processes undertaken by the respondent as explained above are not in dispute.
13. We find that the manufacturing processing undertaken by the respondent such as screen printing or solder paste, mounting of Individual components on the PCB, etc. cannot be held to be that the parts imported by the respondent are not further worked upon.
14. In view of the above, we find no merits in the contention of the Revenue.
15. in respect of time bar also we find the appellant had declared the description of the imported goods in the Bills of Entry and there is no evidence on record to show that the appellant had misdeclared the description of the imported goods. It is only the opinion of Revenue that the parts in question are to be assessed to Customs duty as the product in unassembled in CKD condition. Hence the allegation of suppression with intent to evade duty is not sustainable.9
Cusetoms Appeal No.75168,75171,75172 of 2019
16. In view of the above, we find no infirmity in the impugned order and the appeal is dismissed. The cross- objections are also disposed of accordingly."
24. In the case of Commissioner of Customs, New Delhi vs Sony India Limited [2008(231)ELT 385(SC)], Hon'ble Supreme Court has held as under:
"14. We have already held that in this case the goods brought were not having the essential character of CTVs. We do not find anything to take a view that the goods were in unassembled or dis-assembled condition and they should be taken to be the complete CTVs, particularly when there is no finding recorded anywhere on facts that all these goods could make 1500 CTVs. However, we accept the argument that the goods brought in different consignments separately on the basis of valid import licences would not attract the import duty as if they were the finished goods. We have already referred to this aspect vis-a-vis the facts in Phoenix International's case where the goods were brought in one and the single consignment and they were all brought together though they were imported by two companies, i.e., PIND and PIL fraudulently.
15. Shri Lakshmikumaran, learned counsel for the respondent also drew our attention to the HSN Explanatory Notes as it stood prior to 1997 which is as under:
"(VII) For the purpose of this Rule, articles presented unassembled or disassembled means articles the components of which are to be assembled either by means of simple fixing devices (screws, nuts, bolt, etc.) or by riveting or welding, for example, provided only simple assembly operations are involved."
Learned counsel further points out that in a decision in CCE v. Woodcraft ((1995) 3 SCC 454) this Court took the view that HSN Explanatory Notes should be referred to for understanding the true scope and meaning of expressions used in the Customs Tariff. He further points out that the Revenue did not dispute the fact that complicated processing of imported parts had to be done before they could be fit in the assembly of CTVs. Shri Vikas Singh, 10 Cusetoms Appeal No.75168,75171,75172 of 2019 learned ASG also did not dispute this fact during the debate before us that a complicated process had to be exercised before these components could be brought in use for CTVs. There is also a specific finding by the Tribunal on this issue. In that view since the concerned Explanatory Note was applicable, there would be no question of treating these notes to be in unassembled or disassembled condition since a complicated process had to be exercised and then before it could be used for the assembly of the CTVs. Of course this Explanatory Note was further amended by adding the words "no account is to be taken in that regard of the complexity of the assembly method. However, the components would not be subjected to any further working operation for completion into the finished stage". It is an admitted position that this amendment was not there and therefore, the complexity of the assembly method would have to be taken into consideration at least in case of the present goods since the concerned period is pre 1997 period. The Tribunal has correctly held that the HSN Explanatory Notes to Rule 2(a) had to be applied while considering the relevant Tariff Entry. It has also correctly held after considering the whole process that the process involved in the user of the components is the complex manufacturing process during which many components are subjected to working operation requiring sophisticated machinery and skilled operators. Further it has correctly assessed the effect of the amendment of HSN Explanatory Notes which came on 14-3-1997. We approve of the finding given by the Tribunal in para 25 of its order which takes into account the fact that there was no amendment to Clause (v) while this is amended to the effect that complexity of the assembly method was made irrelevant. However, it was made clear that the components would not be subjected to any further working operation for completion in the finished state. The Tribunal has referred in details to the manufacturing process to show that some of the components require further working operation for completing the manufacturing process and further that CTV is not a machine which is presented in assembly for the 11 Cusetoms Appeal No.75168,75171,75172 of 2019 sake of convenience of packing, handling or transport. We are, therefore, in agreement with the finding that even applying the amended HSN Explanatory Notes the position would be no different.
16. Our attention was invited to a very interesting decision reported in Madi Xerox Ltd. v. CCE, New Delhi [1998 (103) ELT.
619) which was confirmed by this Court in 2001 (133) E.L.T. A91 (it must be noted that the decisions in Woodcraft Products is specifically confirmed in this decision). In this case, the Tribunal had relied on Tara Chand's case as also the CC v. Mitsuny Electronics Works (1987 (30) E.LT, 345 (Cal. HC)) which we have made reference in the earlier part of this judgment. The Tribunal had held that the fax machine in completely knocked down condition imported by the appellant being not a fax machine but part thereof, the benefit of exemption under Notification No. 59/88/Cus, dated 1-3-1988 would not be available. Very interestingly, it was claimed by the importer that it had imported the fax machine and not the components obviously because the duty payable on the components was more. The Tribunal came to the conclusion that in view of Section Note 2 to Section XVI Rule 2(a) would not apply and confirmed the import of goods as components. While interpreting Explanatory Note to Rule 2(a), the Tribunal had held that this Rule would apply only when the imported articles presented in unassembled or disassembled can be put together by means of simple fixing device or riveting or welding. It came to the conclusion that fax machines were not the type of goods which were normally traded or transported in knocked down condition and therefore, the imports were that of the components and not of fax machines. Shri Lakshmikumaran also invites our attention to the fact that Chapter 64 dealing with footwear does not have a note similar to Note 2 in Section XVI. Thus this position would render support to the proposition that Rule 2(a) would apply only when the imported articles presented unassembled or disassembled can be put together by means of simple fixing device or by riveting or welding. We have already 12 Cusetoms Appeal No.75168,75171,75172 of 2019 pointed out in the earlier part of our judgment that the complicated process would be required for the user of those parts.
17. Lastly, we must take stock of the argument of Shri Lakshmikumaran that Section Interpretative Rule 2(a) would not be applicable at all in this case. For this he invited our attention to Rule 1 of Interpretative Rules as also to the decision in Simplex Mills v. Union of India [2005 (181) ELT. 345 (S.C.)) wherein this Court had held in para 11 as under:
"11. The rules for the interpretation of the Schedule to the Central Excise Tariff Act, 1985 have been framed pursuant to the powers under Section 2 of that Act. According to Rule 1 titles of sections and chapters in the Schedule are provided for ease of reference only. But for legal purposes, classification "shall be determined according to the terms of the headings and any relevant sector or chapter Notes". neither the heading nor the notes suffice to clarify the scope of a heading, then it must be construed according to the other following provisions contained in the Rules. Rule-I gives primacy to the Section and Chapter Notes along with terms of the headings. They should be first applied. If no clear picture emerges then only can one resort to the subsequent rules."
Relying on this the further contention of the counsel is that Section Note 2 of Section XVI provides mandate for classification of the parts of machines falling under Section XVI. in terms of Rule 1 of interpretative Rules, Invocation of Rule 2(a) for certain categories of goods covered in Section XVI like the goods of CTVs are prohibited. For this the learned counsel relied on the decision in Modi Xerox (supra). In that view the learned counsel says that Rule 2(a) would not be applicable at all. This question needs no consideration here particularly in view of the interpretation that we have given to Rule 2(a). On facts, we have already found that Rule 2(a) would not be applicable to the present case since there is no question of the goods having the essential character of CTVs. In that view, the question of applicability of Section 2(a) on this account need not be gone into in this judgment.
13Cusetoms Appeal No.75168,75171,75172 of 2019
18. We also approve of the reliance by the Tribunal on the reported decision in Susha Electronics Industries v. CC (1989 (39) E.LT, 5851, Trident Television Pvt. Ltd. v. CC ((1990) 45 E.LT.
24), Vishal Electronics Pvt. Ltd. v. CC, Bombay (1998 (102) E.LT,
188), Sharp Business Machines (supra) and the judgment of the Calcutta High Court in HCL Ltd. (supra).
19. Accordingly, we are of the clear opinion that the Tribunal's judgment needs no interference. We accordingly confirm the same and dismiss the present appeal. In view of the important question of interpretation Involved in the matter, we do not propose to inflict any costs."
25. Hence, by applying the ratios of the aforementioned Judgments and spirit of the intention of legislation, reliance cannot be placed only on Boards circular dated 11.1.2005, which was issued clarifying notification 21/2002-Cus.
26. Moreover, the wordings of the notification 21/2002-Cus which was interpreted by Board in their Circular dated 11.1.2005 is different from the present wording of the notification 57/2017-Cus dated 30-6-2017 which categorically provides grant of such benefit to parts and components imported for the manufacture of complete mobile handset and charger of mobile following the procedure set out in Customs (Import of Goods at Concessional Rate of duty) Rules, 2017. Besides, the fact remains uncontested that the appellant are following a procedure of detail manufacture of process and their manufacturing activities have been duly approved and registered by the Jurisdictional authorities.
27. I also find that there is difference between the complete parts or components as imported and almost complete which implies that there are certain parts that are required to complete the machinery. In this regard, I find that in the case of Ma Sherawali Impex vs. Commissioner of Customs (Port), Kolkata reported in 2003(162) ELT 835(Tri.-Kolkata) wherein Hon'ble CESTAT held as follows:
14Cusetoms Appeal No.75168,75171,75172 of 2019 "5. We have carefully considered the rival submissions and gone through the case records including the orders-in- original and the order-in-appeal and have also perused the case laws relied upon by the defence. The issues that arise for determination in all these appeals whether the impugned goods are classifiable as complete photocopier machines falling under Heading 9009.12 os held by the appellate authority or under sub-heading 9009.99 as components of photocopier as claimed by the appellants, and whether there was any mis-declaration with regard to value or the quantum of the goods imported. We observe that in all these cases the appellants herein have imported components of photocopying machines under different bills of entry and all the consignments were physically examined by the proper officer in the presence of the Chartered Engineer who have issued certificates of examination after inspection of the goods. The certificates clearly states the condition of the goods and further states that the goods imported are old and used items of components of photocopiers and are in good condition having residual life approximately of five years on normal maintenance.
In all these cases, a higher value has been assessed by the Chartered Engineers as against the lower value declared by the appellants. The certificates rendered by the Chartered Engineers were also accepted by the Examining officer. We further observe that in all these cases, the original authority has noted that the importers have grossly undervalued the goods and he has enhanced the value accordingly though without any discussion. Since the appellants have contravened the provisions of the EXIM policy in importing the goods without a licence, the original authority had ordered confiscation of the goods with option to redeem the same on payment of fine, besides imposition of penalty. We observe that the gravamen of the Department is that the importers have imported "almost complete photocopiers under the guise of components Examining this question, we observe that in all these cases, as noted above, the Chartered Engineers have certified that what was imported was components of photocopiers 15 Cusetoms Appeal No.75168,75171,75172 of 2019 and not complete photocopiers. There is certainly difference between what is known as "almost complete photocopiers" and complete photocopiers. It is common knowledge that when photocopier is almost complete" it implies that certain parts are required for them to become complete and unless the photocopiers are complete in all respects, it cannot be said that it is fully functional. We further observe that the Commissioner (Appeals) in the impugned order has referred to the searches conducted by the DRI which revealed that original invoice from USA supplier to Singapore showed complete machines at a higher value. What is to be seen is whether importers have imported the photocopiers in full or components irrespective of what was covered by the invoice of the supplier at USA to the Singapore intermediary. Neither the particulars of the invoice nor the verification report relied upon by the lower appellate authority were furnished to the appellants with a view to giving them a chance to rebut the same, particularly when a finding is reached against them which is against the principles of natural justice. We further observe that it is not the case of the Department that there was any misdeclaration with regard to the quantities and the number of items imported. The learned Counsels for the appellants have argued that for a photocopier to become functional the activities such as fixing of the assembly unit, feeding assembly, functional gears, drum unit, developer unit, motor, Clutch lens assembly with six mirror assembly, etc., have to be undertaken and after that all the unit has to be thoroughly cleaned with petrol/K. oil and the damaged ports if any have to be replaced. He has also pleaded that items such as Control panel, top panel cover, top glass, front cover, right cover, left cover, top flot ADF/top cover Bypass tray, apart from other miscellaneous items like screws, washers, circlips, etc., are also required to make a photocopier complete and functional. The Revenue has not controverted this position. Further, it is also an admitted position by the Revenue itself that except in the case of import covered by three Bills of Entry, the goods were only "almost 16 Cusetoms Appeal No.75168,75171,75172 of 2019 complete" photocopiers. In these three cases also. (BE No. 156088 dt. 19-12-02, Bill of Entry No. 15687 dt. 20-12-87 and Bill of Entry No. 156608, dt. 30-12-02) the Bills of Entry and the Chartered Engineer's certificates show that what was imported was old and used components of photocopiers. Therefore, in the face of the examination report of the proper officer coupled with the certificates rendered by the Chartered Engineers and the submissions made by the learned Advocates for the appellants bringing out the difference between complete copiers and almost complete photocopiers, we hold that what was imported was parts/components of old and used photocopiers and they are classifiable under sub-heading 9009.99 and not under 9009.12 as complete photocopier. In arriving at this conclusion we find support from the judgment of the Larger Bench in the case of Sony India Ltd. v. CC, ICD, New Delhi reported in 2002 (143) E.LT. 411 (Tri.-LB) wherein it was held that components of. Colour TV cannot be treated as complete CTV. It was also held therein that components of colour TV brought under different consignments over period of time connot be clubbed as to consider them complete TV sets. We also take note of the judgment rendered by the South Zonal Bench in the case of Award Electronics v. CC, Chennai reported in 2003 (153) E.L.Τ. 210 (T) = 2003 (85) ECC 737 by relying upon the Larger Bench decision in the case of Sony India Ltd. v. CC, ICD, New Delhi (supra) wherein it was held that the Revenue cannot take full value of the cameras, for the parts of cameras imported."
28. The similar ratio is also held by Hon'ble CEGAT in the case of Award Electronics vs. Commissioner of Customs, Chennai, reported in 2003(153) ELT 210 (Tri.-Chennai).
29. Also in the case of in the case of Thomson Consumer Electronics (1) P. Ltd. vs. Commissioner of Customs, Chennai, reported in 2004(177) ELT872(Tri-Chennai).
30. I also find that the revenue had filed the appeal in the judicial pronouncements cited supra before Hon'ble Supreme Court 17 Cusetoms Appeal No.75168,75171,75172 of 2019 [reported in 2009 (235) ELT A85 (S.C)). However, the same are dismissed and Hon'ble Supreme Court held as follows:
"The point involved in these appeals is squarely covered against the revenue by a recent decision of this Court in the case of Commissioner of Customs, New Delhi v. Sony India Ltd., Civil Appeal No. 8236 of 2002, dated 23rd September, 2008 [2008 (231) E.LT. 385 (S.C.)).
Accordingly, these appeals are dismissed. No costs."
31. I also find that the similar issue of the instant appeal is also laid down and discussed in the case of Commissioner of Customs, New Delhi vs. Sony India Ltd. reported in 2008(231) E.LT.385(S.C.).
32. In view of the above, I set aside the change in classification of value of the imported goods as done by the lower authority and assess the impugned bill of entry at declared classification of the goods by the appellant.
33. Further, in the case of Morgan Tectronics Ltd vs C C New Delhi- reported in 2015(316) ELT 276 (Tri- Del), in spite of the fact along with parts some finished mobiles were imported and wherein it was held as under:
"7. The only mis-declaration alleged is that while in both the cases the consignments were declared to be of mobile phones in SKD condition, on examination, bulk of the quantity were found to be in fully assembled condition. Since the goods had been imported by SEZ unit, there was no question of levy of customs duty and there was no duty involvement and for this reason only, in both the cases, the Commissioner has given a finding that in any case, it is not established beyond that the mis-declaration was intent to evade payment of any customs duty. The appellant's contention is that even the sets which were found in assembled condition, were to be subjected to certain further processes like feeding the IMEI number, checking the bluetooth, checking and adjusting the parameters of phones, etc., before the same could be exported and these processes amount to manufacture in terms of definition of 'manufacture' in SEZ Act, but this plea of the appellant has not 18 Cusetoms Appeal No.75168,75171,75172 of 2019 been refuted. Therefore, without even giving into the question of jurisdiction, there was absolutely no justification for confiscation of the goods and recovery of the amount towards redemption fine and imposition of penalty on them.
8. Moreover, in terms of the Section 53(1) of the SEZ Act, 2005, the SEZ is deemed to be territory outside the Customs Territory of India, and the goods imported were meant for the unit in SEZ Nolda. In our view, the Commissioner of Customs, Air Cargo, New Customs House, New Delhi had no jurisdiction to confiscate these goods and impose penalty on the appellant and it is only the Joint/Dy. Commissioner/Asstt. Commissioner of Customs, in Noida SEZ unit, who had the jurisdiction to take necessary action. For this reason also, the impugned orders are not sustainable.
9.In view of the above discussion, the impugned orders are not sustainable. The same are set aside. The appeals are allowed."
34. In view of the above discussions, it is clear that the appellant in the instant case, is eligible for the benefit of notification no.57/2017-Cus [serial no. 6] dated 30-6-2017 and thus the order of the lower authority is liable to be set aside.
35. Accordingly, I set aside the re-assessments done by the lower authority in the impugned bills of entry and re-assess the impugned goods, i.e., 'Parts for manufacture of mobile handsets' imported by Bills of Entry nos.4444568 dt. 18.12.17, 6230115 and 6229247 both 3.5.18 with duty benefit allowed under Notification no. 57/2017-Cus (serial no. 6] dated 30-6-2017."
10. In view of the above discussions and on going through the order of the ld.Commissioner (Appeals), we do not find any infirmity in the impugned order passed by the ld.Commissioner (Appeals). Therefore, we do agree with the observations of the ld.Commissioner (Appeals).
19Cusetoms Appeal No.75168,75171,75172 of 2019
11. In that circumstances, we uphold the order passed by the ld.Commissioner (Appeals) and dismissed the appeals filed by the Revenue.
(Operative part of the order was pronounced in the open court) (Ashok Jindal) Member (Judicial) (K.Anpazhakan) mm Member (Technical)