Custom, Excise & Service Tax Tribunal
M/S Casio India Co. Pvt. Limited vs Cc, New Delhi on 25 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. I DATE OF HEARING : 02/11/2016. DATE OF DECISION : 25/11/2016. Customs Appeal No. 59754 of 2013 [Arising out of the Order-in-Appeal No. CC (A) CUS/360/2013 dated 12/07/2013 passed by The Commissioner of Customs (Appeals), New Custom House, New Delhi.] M/s Casio India Co. Pvt. Limited Appellant Versus CC, New Delhi Respondent
Appearance S/Shri Balbir Singh, Senior Advocate and Rupendra Singh, Advocate for the appellant.
Dr. S.K. Sheoran, Authorized Representative (DR) for the Respondent.
CORAM : Honble Shri Justice Dr. Satish Chandra, President Honble Shri Ashok K. Arya, Member (Technical) Final Order No. 55283/2016 Dated : 25/11/2016 Per. Ashok K. Arya :-
M/s Casio India Co. Pvt. Limited is in appeal against order-in-appeal dated 12/07/2013 passed by Commissioner (Appeals), wherein order-in-original dated 07/11/12 has been sustained. The order-in-original has classified the item imported under Custom Tariff Heading (CTH) 85286900 as multi purpose projector to which the benefit of Sl. No. 17 of Notification No. 24/2005 CUS dated 01/03/2005 is not applicable.
2. The appellant has been represented by Shri Balbir Singh, learned Senior Advocate and the Revenue has been represented by Dr. S.K. Sheoran, learned AR.
3. The learned Advocate for the appellant based on the appeal memorandum and written submissions mainly submits as under :-
(i) The issue pertains to import of Data Projector where classification is claimed under 85286100 with exemption under Notification No. 24/2005-CUS dated 01/03/2005 (under its entry No. 17).
This exemption is based on ITA Information Technology Agreement singed by India for Permitting IT products into India without payment of Customs Duty.
(ii) Department rejects classification under Tariff Heading 85286100 saying that said tariff heading covers goods which are solely or principally used in an automatic data processing system of Heading 8471 whereas the Projector in question, although usable with data processing machine has certain ports such as HDMI, S-Video, audio video and consequently, the goods have multiple uses, hence cannot be treated as goods principally usable with automatic data processing machine classifiable under claimed Tariff Heading.
(iii) The projector imported by the appellant are next generation projectors which has got additional features such as S-Video port, HDMI port etc. However, the principal use is with data processing machine only.
(iv) Projectors imported by them are used for educational and business purposes and they have not sold a single projector to a customer using for video or any other entertainment purposes.
(v) With regard in technology and change in usability of the automatic data processing machine, certain additional ports have been added to the product to make it compatible with the automatic data processing machine. The additional ports give additional utility in the form of video or audio display. However, the differentiating mark to determine whether Projector is meant to use for data projections or video projections is three fold :-
(a) the aspect ratio of data Projector is either 4:3 or 16:10 whereas the aspect ratio of video projector is 16:9;
(b) the contrast ratio of data Projector is 2000:1 whereas the contrast ratio of video projector is 40000:1;
(c) the luminosity of their imported goods namely data projector is between 2500 to 3000 lumes against 1600 lumes which are found in video projectors. These specifications are available from product catalogue attached.
(vi) The issue of classification in question is no more res-integra and this Tribunal in the following decisions based on identical set of facts have classified Projector under Tariff Heading 85286100 and extended the benefit of Notification No. 24/2005-CUS dated 01/03/2005 :-
(i) CC, Mumbai vs. Vardhaman Technology Pvt. Ltd. reported in 2013 TIOL 1045 CESTAT MUM.
(ii) Acer India Pvt. Ltd. vs. CC, Chennai reported in 2010 TIOL 401 CESTAT MAD.
(iii) Commr. of Cus. & C.E., Hyderabad vs. Aveco Viscomm Private Ltd. reported in 2011 (263) E.L.T. 420 (Tri. Bang.)
(iv) Commr. of Cus., ACC, Mumbai vs. Vardhman Technology Pvt. Ltd. reported in 2014 (301) E.L.T. 427 (Tri. Mum.)
4. The learned AR for the Revenue has reiterated the findings given by the lower authority.
5. We have carefully considered the facts of the case and submissions of both the sides.
6. Competing classifications for the subject goods are Customs Tariff Headings 85286100 and 85296900. The appellant prefers the classification 85286100 with the claim for exemption Notification No. 24/2005-CUS (supra) against entry at Sl. No. 17 of the table annexed with it. But the Department wants to classify the said goods under Chapter heading 85286900 where rate of duty is 10% and no benefit of exemption notification No. 24/2005 CUS (supra) is available.
6.1 The main contention of the appellant is that item imported is principally used in Automatic Data Processing system of Heading 8471 and item normally is not for television or for video playing company engaged in entertaining business. The appellant also emphasises that aspect ratio of their import goods namely Data Projector is 4:3 whereas aspect ratio of video projector is 16:9; the contrast ratio for their import goods namely Data Projector is 2000:1, whereas the contrast ratio of video projector is 40000:1; and the Luminosity of their import goods namely data projector is between 2500 to 3000 lumes whereas video projectors have the luminosity of 1600 lumes.
6.2 From the literature produced, it appears that the specifications of the imported goods are for the projectors which are meant for use as data projectors and not as video projectors; therefore, goods would be covered by the description Projectors of a kind solely or principally used in an automatic data processing system of heading 8471, which is the description of the Customs Tariff Heading 85286100 for which the benefit of Notification No. 24/2005-CUS (supra) under its entry No. 17 would be available. The subject issue is covered by the CESTAT, Chennai decision in the case of Acer India Pvt. Ltd. vs. CC, Chennai reported in 2010 TIOL 401 CESTAT MAD. In this regard, the CESTATs observations given in para 3 in the said decision are as under :-
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 an 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 residual category 8528.69. The impugned exemption Notification No. 24/2005 dated 01/03/2005 as amended during the relevant period exempts all goods falling under sub-heading 8528.61. 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 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 desktop 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.
6.3 Similar view has been expressed by the CESTAT Mumbai in the case of CC (I), ACC, Mumbai vs. Vardhaman Technology P. Ltd. reported in 2014 (301) E.L.T. 427 (Tri. Mumbai), where it was held that the item in question is to be classified under Chapter Heading 85286100 for which the benefit of Notification No. 24/2005-CUS (supra) under its entry No. 17 is admissible.
7. In view of above, the impugned order is set aside and the appeal is allowed with consequential relief to the appellant.
(Order pronounced in open court on 25/11/2016.) (Justice Dr. Satish Chandra) President (Ashok K. Arya) Member (Technical) PK ??
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