Home Case Index All Cases Customs Customs + HC Customs - 2016 (4) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (4) TMI 621 - CALCUTTA HIGH COURTLegality/validity of Circular No. 19/2013-CUS dated 9th May, 2013 - classification of Filters referred to as 'Disposable Sterilized Dialyzer' and 'Microbarrier' for filtering blood - Originally the goods being Dialysers were classified under CTH 90189031 which pertain to "Renal dialysis equipment (artificial kidneys, kidney machines and dialysers)" but after the circular dated 9th May, 2013, classified as above under Tariff Item 84212900, attracting a higher rate of customs duty Held that:- CTH 90189031 specifically provides for dialysers whereas CTH 84212900 provides for generic description of articles. Heading 9018 under Chapter 90 pertains to medical instruments whereas heading 8421 under Chapter 84 pertains to goods which are generally used for industrial purposes and do not appear to have any medical use. Hence, the natural classification of dialysers should be under CTH 90189031 as it was prior to issuance of the impugned circular. When a specific tariff heading for classification is available, the goods concerned cannot be classified under a generic tariff heading. In the instant case, the onus was on the department to justify the change of classification sought to be made by the impugned circular, which onus, in my opinion, has not been discharged by the Department. Thus, it is evident that the impugned circular is blatantly contrary to the said Rule and is thus, not sustainable. Challenge to circular - Department contended that once agreed to the assessment made by the Department, the petitioner cannot be permitted to challenge the said assessment or the impugned circular on the basis whereof the assessment was made - Held that:- non-mentioning of any and every fact does not amount to suppression of material facts. A material fact is one that would have a bearing on the decision of the court. Even if the petitioner mentioned in the writ petition about the factum of he having initially agreed with the Department's assessment, my decision would not have been any different. This is so because there can be no estoppel against the statute. S. 11A of the Customs Tariff Act does not countenance amendment of the First Schedule to the said Act by issuance of a mere departmental circular. The method in which the First Schedule has been sought to be amended is contrary to the method prescribed by S. 11A and as such the circular cannot be sustained. Hence, the fact that the petitioner initially agreed with the Department's assessment is not a material fact and accordingly the respondent's first point is rejected. Validity of Show cause notice - Department contended that the petitioner has not challenged the show cause cum demand notice dated 21 April, 2014 - Held that:- this is a point without any substance. The said show cause notice is admittedly based on the impugned circular. If the circular is quashed, the show cause notice automatically goes. Hence, the impugned circular is bad in law being without jurisdiction and cannot be sustained. The Circular No. 19/2013-CUS dated 9 May, 2013 is quashed and set aside. - Decided in favour of applicant
|