Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (I), Acc, ... vs Vardhaman Technology P. Ltd on 28 May, 2013
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. C/916/12
(Arising out Order-in-Original No. CC/MAK/112012-13 ADJ/ACC(I) dated 21.05.2012 passed by the Commissioner of Customs (I), ACC, Mumbai)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. S.K. Gaule, Member (Technical)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Commissioner of Customs (I), ACC, Mumbai
Appellant
Vs.
Vardhaman Technology P. Ltd.
Respondent
Appearance:
Shri Amand Shah, AR for the appellant Shri D.H. Nadkarni, Advocate for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. S.K. Gaule, Member (Technical) Date of hearing : 28.05.2013 Date of decision : 28.05.2013 O R D E R No:..
Per: Mr. S.K. Gaule, Member (Technical) Heard both sides.
2. The revenue filed this appeal against Order-in-Original whereby the Commissioner dropped the proceedings initiated vide demand cum show-cause notice dated 14.12.2012 against the respondent.
3. Briefly stated facts of the case are that the respondent imported seven consignments of VIVITEK Projectors and filed seven bills of entry classifying the goods under CTH and CETH 85286100 claiming the benefit of exemption under Sr.no. 17 of the Customs Notification no. 24/2005 dated 01.03.2005 as amended. The department was of the view that only those kind of projectors can be classified which are used solely or principally in an automatic data processing system of heading 8471 and which alone are eligible for the benefit of the Notification. Accordingly proceedings were initiated against the respondent and show-cause notice was issued against them for demanding duty and along proposal for penalty. Ld. Commissioner adjudicated the case and held that the imported goods merit classification under CTH 85286100 and dropped the proceedings initiated against the respondent. Hence the appeal.
4. The contention of the revenue is that the impugned projectors in addition to VGA, DVI, USB ports provided to receive signals from CPU, also had other ports like composite Video Port, S-Video Port, HDMI, RCA Audio Stereo. The contention is that the presence of such port for RCA connectors (Red white and yellow) in the said projector indicated that the said projector was not meant for usage of a kind solely or principally for use in an automatic data processing system of heading 8471. The goods are capable of effective use without being attached to a automatic data processing machine as CTH 85286100 claimed by the respondent are available only for those projectors which are meant for use solely or principally in automatic data processing machine of heading 8471. In these circumstances, these projectors with multiple uses are appropriately classifiable under CTH 85286900. The contention is that the adjudicating authority had erred in relying upon the clarification of the Additional Director, Dept. of Technology, to conclude that the K-yan system is a product falling under HSN 8471. The contention is that it is not known as to what parameters have been used by the department of Technology in giving such opinion, and which his not binding for the customs classification. They placed reliance on Hon'ble Supreme Court decision in OK Play (I) Ltd. vs. CCE 2005 (180) ELT 300.
5. The respondent reiterated the finding of the ld. Commissioner and submitted that the projectors are solely or principally used in automatic data processing system merely having additional feature and would not disentitle for classification under 85286100. Since they are used in K-yan computer and they are integral part of the computer to make it a combination of a projector and a computer system. They placed reliance on Celetronics India P. Ltd. 2007 (211) ELT 553 and Aveco Viscomm Pvt. Ltd. 2011 (263) ELT 420.
6. We have carefully considered the submission and perused the record. The department has contended that only those kind of projectors can be classified under CTH 85286100 which are solely or principally for use in an automatic data processing system of heading 8471. Since these projectors are having additional feature like composite Video Port, S-Video Port, HDMI, RCA Audio Stereo besides VGA, DVI, USB ports, they cannot be said to be meant for use solely or principally in an automatic data processing system of heading 8471. We find that it is not in dispute that they are used in automatic data processing system of heading 8471. The only dispute is that they are having additional features which make them not classifiable under 85286100. We find from the records of the case that the product combines the computing power of a computer with large screen display provided by an inbuilt projection system to deliver powerful outcomes through the use of technology for large screen projection to a wider audience. The projection system cannot be used in isolation but replaces the functionality of a monitor. The projectors merely having additional function cannot be a ground for classifying it other than 85286100. This issue was before the Tribunal in the case of Aveco Viscomm Pvt. Ltd. (supra) and Celetronics India P. Ltd. (supra) wherein the cases were decided in favour of the importer/assessee.
7. In these circumstances, we do not find infirmity in the ld. Commissioners order which is upheld and appeal which is devoid of merits is dismissed.
(Operative part pronounced in Court) (Ashok Jindal) (S.K. Gaule) Member (Judicial) Member (Technical) SR 5