TMI Blog2010 (9) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... s be condoned as the Order-in-Appeal was received in the Office of the Commissioner on 5-11-2008 and the Committee of Commissioners had reviewed the order on 7-1-2009 and directed the Assistant Commissioner to file an appeal before the Tribunal. It is his submission that the appeal was dispatched/sent by Registered AD from the Office of the Assistant Commissioner on 30th January, 2009. It is his submission that when the matter was first called out, the Bench pointed out that the appeal was received in the Registry on 9-2-2009 whereas the last date for filing the appeal was 5-2-2009. It is his submission that the delay being marginal may be condoned. 3. The learned Consultant Shri Moheb Ali, appearing on behalf of the Respondents, submits that the application for the condonation of delay is improper. It is his submission that the Review Order of the Committee of Commissioners has only directed the Assistant Commissioner to file an appeal before the Tribunal. It is his submission that the Committee, under the provisions of Section 129E of the Customs Act, can only direct to file an appeal. For filing application for condonation of delay, another authorization is required and which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, vide O-I-O No. S/17/UP/42/07-ACC, dated 6-6-2008, took up the matter for disposal. Vide the Order-in-Original dated 6-6-2008, the Adjudicating Authority considered various points raised by the assessee before him and in the facts and circumstances of the case, as was found during the examination of the goods, came to the conclusion that the classification of the said goods imported by the respondent/assessee shall be 8528 61 00. Aggrieved by such an order, the Revenue preferred an appeal to the learned Commissioner (Appeals). The learned Commissioner (Appeals), vide the impugned order, after considering the submissions made by the assessee and the Grounds of Appeal raised by the Revenue, held that the O-I-O was correct and does not require any interference. Aggrieved by such an order, Revenue is before us. 6. The learned DR while assailing the order would submit as under :- (1) It is not clear from the O-I-A of the learned Commissioner (Appeals) that how he came to the conclusion that the goods imported by the assessee are principally used in an Automatic Data Processing Machine Systems (ADPS), though they can be connected to VCD/DVD players, LCD players, etc. It is his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the United States International Trade Commission Rulings, relying upon the General Rules for Interpretation of Imported Goods, held that these Projectors would fall under the Tariff Heading No. 8528.30.6800 as Projectors. It is his submission that the said decision has been reiterated in various other rulings by the United States International Trade Commission. It is his submission that the US Tariff Heading No. 8528.30.6800 is pari materia with our Customs Chapter Heading No. 85286900. 6.2 Besides these rulings, he has not relied upon any other rulings and has relied upon the General Rules for Interpretation of Import Tariff. 7. The learned Consultant, on the other hand, would submit that the respondent had demonstrated before the learned Commissioner (Appeals) that the goods imported by them are of a kind which are principally used with machines falling under Chapter Heading 8471 because of their peculiar features and had also demonstrated that how they are different from other projectors which are used in conjunction with DVD Players, Video gaming devices, etc. and how the projectors are different from the ones used in entertainment industry. It is his submission that b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is whether the goods imported by the assessee respondent i.e. VT49G SVGA Projectors are to be classified under Customs Tariff Heading No. 8528 61 00 by extending the benefit of Notification No. 24/2005 dated 1-3-2005 or under 85288 69 00 as Others wherein such benefit of exemption of Notification No. 24/05 is not available. 8.2 In order to appreciate the dispute between the parties, it is necessary to reproduce the rival entries, which are as under :- Tariff Item Description of goods Unit Rate of duty Standard Preferential Areas (1) (2) (3) (4) (5) 8528 61 00 Projectors of a kind solely or principally used in an automatic data processing system of heading 8471 u 10% 8528 69 00 Other u 10% 8.3 It can be seen from the above reproduced entries that the entry 8528 61 00, as claimed by the assessee and allowed by both the lower authorities, indicates that the Projectors should be of a kind solely or principally used in an Automatic Data Processing System of Heading No. 8471 while 8528 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de nomenclature runs contrary to the context in which the word was used as was the case in Akbar Badrudin Giwani v. Collector of Customs : (1990) 2 SCC 203. 8.5 We find that the Hon ble Supreme Court, in the case of Hindustan Poles Corporation (supra) has held that the residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specified entries. Unless the Department can establish that the goods in question can by no conceivable process of welding be brought under any of the tariff items, resort cannot be had to the residuary item . We find that in the case before us, the Revenue has not established that the goods imported by the assessee were of a category, which cannot be used along with ADPS and nor there is any evidence to indicate that the said goods were and can be used without ADPS. Revenue has failed to produce any evidence before the lower authorities and before us also to indicate that the product merits classification under the residuary sub heading 85286900. 8.6 As we have already herein above held that 8528 69 00 being a residuary tariff entry, it was for the Revenue to lead an evidence that the goods imported by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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