TMI Blog2018 (2) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the Commissioner and brochures containing technical specifications of projectors of these two different kinds were also placed before him in a 99 page compilation - Since the appellant had made categorical assertions about the technical differences and had also backed them up by producing brochures of different manufacturers, the Commissioner was to deal with this crucial submission. The appellant had adequately discharged the initial burden of proof which lay upon it. The burden of proof then shifted upon the Revenue to prove that the technical differences cited were either irrelevant or non-existent. No such attempt has been made by the revenue either in the Show Cause Notice or in the impugned order - the revenue has failed to produce any evidence to rebut the appellants contention or to disprove the evidence produced by the appellant. The evidence on record establishes that the initial burden which lay upon the importer-appellant for claiming the benefit of an Exemption Notification has been adequately discharged by it. The Revenue has not been able to discharge its burden of disproving or rebutting the evidence placed by the appellant-importer. As such, the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised for the normal period and dropped the proceedings for the demand of extended period. The Adjudicating Authority effectively confirmed the demand of ₹ 1,58,43,056/- along with interest and did not impose any penalties. Aggrieved by such an order, an appeal is preferred before the Tribunal by the importer. Revenue is not in appeal against the order that dropped the demand for extended period. 3. Learned Counsel Shri V.K. Jain appearing on behalf of the appellant takes the bench through the entire records and proceedings. It is his submission that the classification of the projectors imported by the appellant and they are eligibility to claim exemption under Notification No.24/2005-Cus dated 01.03.2005, is no longer res integra and same is decided by this Tribunal in their own case as reported at [2011 (263) ELT 420 (Tri-Bang.)]. It is his submission that for the earlier imports of projectors in 2007, which also had multiple input ports, the classification was disputed, the same classification as has been arrived by the Adjudicating Authority in this case i.e. 85286900 denying the benefit of exemption notification, was the issue in those proceedings, the Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be adopted by them, it would be required for departing from the earlier view held by this Tribunal and accepted by the Revenue. It is the submission that evidence in the form of statements of representatives of other importers of projectors is totally irrelevant as the practice followed by other importers is of no consequence and reliance placed on the statement of the representative of Hitachi is concerned, most of the Models of the Projectors are different from those imported by the appellant. Further the statement of representative of Panasonic Corporation is concerned, the said representative could not satisfactorily explain as to why the Projectors were being classified under sub-heading 85286900, when the invoices issued by foreign supplier i.e. Panasonic Corporation, Japan showed classification of the projectors under Heading 852861. It is his final submission that in any case wrong classification adopted by other importers cannot invalidate the classification claimed by the appellant. 4. Learned Counsel Shri M. Narasimha Sharma with Addl. Commissioner (AR) Shri Chandra Bose appearing on behalf of the Revenue would support the order of the Adjudicating Authority. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of C.Ex., Hyderabad [1996 (82) ELT 444 (SC)] Peshawar Soap Chem. Works Vs. Commissioner of C. Ex., Chandigarh [2001 9138) ELT 855 (Tri.-Del.)] Commissioner of Central Excise, Calcutta-I Vs. ASCU Ltd., [2006 (203) ELT 39 (Tri.-Kolkata)] Collector of C.Ex., Calcutta Vs. Alnoori Tobacco Products [2004 (170) ELT 135 (SC)] 5. We considered the submissions made by both sides and perused the records. 6. The short issue to be decided is whether the projectors imported by the appellant during the period November 2014 November 2016 were entitled for the benefit of Notification No.4/2005-Cus dated1.3.2005 (at Sr. No.17) which grants full exemption from payment of Basic Customs Duty to all goods falling under heading 85286100 of the Customs Tariff. Heading 85286100 to which the exemption applies covers projectors of a kind solely or principally used in an Automatic Data Processing System of Heading 8471. While the appellant claims that the projectors imported by it were principally used in an Automatic Data Processing System (ADPS for short, which usually refers to computers) and are thus entitled for exemption, the Revenues case is that the projectors are equa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the projectors in question were not equally usable with ADPS or Non ADPS applications. The presence of multiple ports in these projectors for enabling their connection with Non-ADPS equipments were explained by pointing out that though these ports enabled the projectors to be used with non ADPS equipments, the principal usage of the projectors continued to be that with ADPS equipments. Some brochures were also referred to in the said statement to support the claim that the projectors imported were data projectors meant for use in classrooms, meeting rooms and seminar halls for displaying images and data such as in a power point presentation. It was further pointed out that these data projectors are not designed for use in home theatres for displaying video images as the video images that could be projected through these projectors were very inferior compared to the videos displayed by projectors which are meant for use for entertainment purposes such as in a home theatre. The assertions made in the statement were reiterated in the replies to the Notice and were then further elaborated and supported by evidence in the form of brochures of third party manufacturers in the course of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... projectors. 26.4 With reference to page 52, he referred to a feature called Frame Interpolation wherein two images are shown of a cyclist of which one is blurred and the other is not. It is his claim that the ADPS projectors will have the blurred quality i.e., image of an inferior quality for a moving image. On a query as to whether with reference to the brochures for the ADPS projectors filed by them, he can show as to whether those brochures referred to the deficiency such as blurred image quality, Shri Jain mentioned that as these kind of projectors do not have those features hence the catalogues will not mention them. He contended that no manufacturer will show their deficiencies / shortcomings in their projectors. Referring similarly to the brochure of another manufacturer of Home Theatre projector Optoma (page 74) he referred to the clear mention of Home Theatre on the brochure and pointed out to various similar features mentioned on the backside such as Segment Primary Color Wheel, Real 2D to 3D Technology, Dynamic Black V, Color Management System, Ultra Detail II, Pure Motion and Pure Color. He similarly referred to the leaflets from other manufacturers like Panasonic/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stainable. 9. The impugned order records a finding that since the projectors imported by the appellant were equallyusable with ADPS equipments and non ADPS equipments, they could not be regarded as projectors of a kind principally used in ADPS of the kind covered under heading 85286100. The finding that the projectors were equally usable with ADPS and non ADPS equipments is based primarily on the statement of Shri Lalit Kumar Singh, Assistant Manager (Services) of Hitachi (India). The Notice also relies upon the statement of one Shri GiriGanesan, Senior Manager (Imports) of Panasonic India. Shri Lalit Kumar Singh, Assistant Manager (Services) of Hitachi has stated that the Indian arm of Hitachi also imports the very same projectors which the appellant has imported but classifies it under the residuary heading 85286100 without claiming the benefit of exemption. Shri GiriGanesan of Panasonic India has also given a similar opinion. The main thrust of the argument of the learned Senior Counsel appearing for the Revenue before us also has been that since Hitachi is the manufacturer of the projector imported by the appellant, the classification determined by Hitachi is of paramount im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced on record before the Commissioner. In our view, the appellant had adequately discharged the initial burden of proof which lay upon it. The burden of proof then shifted upon the Revenue to prove that the technical differences cited were either irrelevant or non-existent. No such attempt has been made by the revenue either in the Show Cause Notice or in the impugned order. We therefore hold that the revenue has failed to produce any evidence to rebut the appellants contention or to disprove the evidence produced by the appellant. 11. The only discussion on technical features is found in para 36 of the order wherein the Commissioner has concluded rather abruptly and without basis that the projectors these days are of the kind that are equally usable by ADPS or Non-ADPS. This sweeping finding is surprising as there was no such allegation in the Notice and even otherwise no basis has been shown by the Commissioner to come to such a startling conclusion. It is a matter of common knowledge that projectors that are used for Home Theatres and Entertainment applications are high-end projectors which are designed to show video images of high resolution and clarity. Data projectors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 Compatible HDMI Port Yes Yes Yes Yes From the above, it can be seen that the impugned goods are having high contrast ratio going to the extent of 10000 : 1. They also have 16 : 9 aspect ratio, and have HDMI ports. I find that the relevance of these features arises due to the fact that in the earlier case (on which the noticees have relied) it was their own submission before the adjudicating authority that the goods imported in that case could not fall under 85286900 as those goods did not have some advancedfeatures as under (extract from page 2 of the Order dated 27.11.2007):- Specification Computer Projectors Multimedia Home Theatre Projectors Contrast 600 : 1 3500 : 1 or more Aspect Ratio 4 : 3 16 : 9 HDMI Port No Yes Thus, I find that now the impugned goods covered by the SCN before me admittedly h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We also find that a part of the demand raised in the Notice is barred by limitation. The Commissioner has held in the order that the larger period of limitation available under the proviso to section 28 is not invokable in the present case as there was no deliberate suppression or misstatement. He has therefore confined the demand for a period of the normal period of limitation. He has however applied two years to be the normal period of limitation and, since the Show Cause Notice was issued on 8.11.2014, all imports made after 8.11.2014 have been held to be falling within the normal period of limitation. The appellant has contested this approach by pointing out that demands for the period from 8.11.2014 till 13.5.2016 was time barred and therefore could not have been the subject matter of the recovery proceedings. It was pointed out that the normal period of limitation was enhanced from one year to two years with effect from 14.5.2016. This was done by an amendment made to the Customs Act by Finance Act, 2016. The position thus was that as on 13.5.2016 i.e. prior to the Finance Act, 2016 coming into force, demand for the period prior to 13.5.2015 had already become barred by limit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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