TMI Blog2021 (2) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... al character of the impugned goods as Lighting Fixture, then the classification as determined by them under heading 94054090 cannot be faulted with. Whether the goods are required to be compulsorily registered with BIS, in view of the provision of the Electronics and IT Goods (Requirements for Compulsory Registration) Order, 2012? - HELD THAT:- From the Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012, it is quite evident that the said order is applicable in respect of the Goods, as defined and specified in the schedule. Further the goods should be conformity with specified Indian Standard as per the schedule. Both the authorities below have failed to specify the Indian Standard as per the Schedule, to which these imported goods, i.e. LED Winches should have been in conformity before proceeding to hold them to be imported in contravention of the provisions of Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012. In absence of any determination of the Indian Standard, which would be applicable in respect of these goods the impugned order holding that goods have been imported in contravention of the provisions of the Electr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No 1398/2019 filed by M/s Star Dimension (I) Pvt Ltd. is rejected being devoid of merit. 2.1 Appellant had filed Bill of Entry No 4777113 dated 05.09.2019, for the clearance of the goods imported by them namely Winches (stage Lighting Equipment) and LED Balls of different sizes, having declared value of ₹ 21,19,307/- and ₹ 1,73.398/-. They claimed the classification of winches under Custom Tariff Heading 84253100 and those of LED Ball under 85395000. 2.2 On examination of the goods, Docks officer, found that winches are to be specifically used in kinetic lights with sole function as stage lighting equipment. Thus the goods were correctly classifiable under the heading 94054090 attracting Custom Duty of (BCD-20%+SCW-10%+IGST-12%) against (BCD-7.5%+SCW-10%+IGST-18%) as claimed by the appellant. Thus the matter was referred by the dock officers to the group for determination of the correct classification and applicable duty. 2.3 After consideration of the submissions made by the Appellant, Assistant Commissioner vide his order in original held as follows: 25. In view of the above, I pass the following order: i) I order for rejection of classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences Limited [2012 (277) ELT 299 (SC)] and A Nagaraja Bros [(1994) Supp 3 SCC 122], Delhi Cloth and General Mills Co Ltd [(1980) 4 SCC 71] has held that common parlance or trade parlance test to be basis for the determination of classification. He relies upon several other decisions of the various authorities expounding the same principle. Since Winch is separate entity which is not covered under heading LED driver and MPCB of 94054090, it will get classified under Heading 84253100. Even by application of General Notes for Parts to Section XVI these goods will get classified under heading 84253100 only. Further in terms of the law laid down in the following decisions also the imported goods will get classified under the heading 84253100 Simplex Mills Co. Ltd [2005 (181) ELT 0345 (SC)] Belmarks Pvt ltd {2003 (158) ELT 295 (T-Del)] Hitachi Home Life Solution Ltd [2012 (285) ELT 504 (T-Mum)] Singhla Sales Corporation Pvt Ltd {2002 (141) ELT 806 (T-Del)] M P Dyechen Industries {2002 (139) ELT 656 (T-Del)] Burden is on the department to prove that goods get classified in the particular heading Hindustan Lever Ltd {2015 (323) ELT 209 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Winch imported by them does not require BIS registration is devoid of merit. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of argument of appeals. In the matter the following questions have been raised for our determination. (i) Correct Classification of the imported good under the heading 84253100 or 94054090? (ii) Whether the goods are required to be compulsorily registered with BIS, in view of the provision of the Electronics and IT Goods (Requirements for Compulsory Registration) Order, 2012? (iii) Goods liable for confiscation and penalty on the importer justified? Correct Classification of the imported good under the heading 84253100 or 94054090? 4.2 Commissioner appeal has in para 8 of his order referred to the Catalogue of the product and observed as follows: 8. The appellant along with the appeal has submitted Kinetic Lighting User Manual. From careful perusal of the same, it is evident this LED Winch is the main equipment of the whole Kinetic Lighting System. The other parts/accessories which are used in the Kinetic Lighting System are LED Ball, Power Cable, Signal Cable, Connecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Other - Jacks, hoists of a kind used for raising vehicles: 8425.49 - - Other This heading covers simple lifting or handling equipment. The provisions of Explanatory Note to heading 84.26 apply, mutatis mutandis, to the equipment of this heading insofar as they concern self propelled and other mobile machines, multifunction machines and lifting, loading, handling, etc., machines intended for incorporation in other machines or for mounting on transport vehicles or vessels of Section XVII. However, if a winch is the normal working tool of a tractor, the complete machine (tractor and winch) is classifiable in heading 87.01. The heading covers : 1. PULLEY TACKLE AND HOISTS OTHER THAN SKIP HOISTS (II) WINCHES AND CAPSTANS Winches consist of hand-operated or power-driven horizontal ratchet drums around which the cable is wound. Capstans are similar, but the drum is vertical. This group includes: (1) Marine winches and capstans for operating cargo lifting gear, raising anchor, maneuvering the steering gear, hauling in tow lines, fishing nets, dredging cabies, etc. The power unit is often built into those machines as an integral whol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s India Pvt Ltd. 303 Mathuria Apts Sir M V Rd, Andheri East, Mumbai - 400069, Maharashtra, India, our independent Chartered Engineer along with Shri. Praveen Kumar E.O Docks, Indian Customs, JNCH, inspected the following Samples Winch (Stage Lighting Equipment) at Sea Bird CFS, JNCH, Nhava Sheva on 10/10/2019. Purpose of this inspection was to verify, assess and give opinion on the samples inspected on following points Viz: a) To inspect appraise the veracity of the Samples inspected in the 'as is where is condition': On Physical Visual verifications and examinations of the Samples inspected the following details were noticed. S No Description CE's Remark 1 Winch (Stage Lighting Equipment) DMX Winch. Used in stage lighting. with integrated electronic controller/ control gear. CE's Comments / Opinions: i. The Sample winch shown were inspected in as is where is condition. ii. The Winch is having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of production of cold rolled sheets and strips from aluminium ingots. We also agree with the Department s representative that none of the machines enumerated in Heading 84.22 alter the form or shape of the material; their function is confined to lifting, handling, loading, unloading and conveying. Since we hold that the principal function of the blocker is coiling, that is other than mere handling, it cannot be classified under Heading 84.22. . 4.7 In case of R C Projects Systems Ltd [2005 (183) ELT 319 (T-Bang)] again reiterating the same principles following was held: The contention of the appellants is that the item is required to be considered as parts of the machinery and draw reference to three judgments of the Tribunal. On our consideration, we find that in the case of CCE v. Conveyor Equipments Pvt. Ltd. [2001 (127) E.L.T. 478], the item Conveyor and material Handling equipments was cleared in CKD condition on account of its huge size, therefore the appellants contention that the entire system is to be considered as an individual item as it satisfies the description of sub-heading 8425.00 as Conveyor and material handling equipments was accepted. This citat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the present case, both the authorities below have determined the essential character of the impugned goods as lighting fixture after considering the product catalogue (literature) and the Chartered Engineer Certificate. Appellants have not produced anything before us to disturb the said findings of lower authority, and establish that impugned goods are simple handling/ lifting equipment to merit classification under heading 84253100. 4.9 Heading 94054090 of reads as under- 9405 LAMPS AND LIGHTING FITTINGS INCLUDING SEARCHLIGHTS AND SPOTLIGHTS AND PARTS THEREOF, NOT ELSEWHERE SPECIFIED OR INCLUDED; . 9405 40 - Other electric lamps and lighting fittings : 9405 40 10 --- Searchlights and sportlights 9405 40 90 --- Other When both authorities have determined the essential character of the impugned goods as Lighting Fixture, then the classification as determined by them under heading 94054090 cannot be faulted with. Whether the goods are required to be compulsorily registered with BIS, in view of the provision of the Electronics and IT Goods (Requirements for Compulsory Registration) Order, 2012 4.9 Both Assistant Commissioner and Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely applied to increasing product categories of Electronic Goods. Presently, it covers electronic / IT goods as available on the BIS website at https://www.crsbis.in/BIS/products.do . 4.12 As per the Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012, 2. Definitions (1) In this Order, unless the context otherwise requires, c. Goods means the Electronic and Information Technology goods specified in the column (2) of the Schedule; e. Schedule means schedule annexed to this order; g. Specified Standard in relation Electronic and Information Technology goods means the Indian Standard as specified in the column (3) of the Schedule; 3. Prohibition regarding manufacture, storage, sale and distribution etc of goods- (1) No person shall by himself or through any person on this behalf manufacture or store for sale, import, sell or distribute Goods which do not confirm to the Specified Standard and do not bear the words Self declaration confirming to IS (Relevant Standard mentioned in column (3) of the Schedule) on the Goods after obtaining Registration from the Bureau: Provided that nothing in this order shall ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010* 18 Passport Reader IS 13252(Part 1):2010* 19 Point Of Sale Terminals IS 13252(Part 1):2010* 20 Mail Processing Machines/Postage Machines/Franking Machines IS 13252(Part 1):2010* 21 Power Banks For Use In Portable Applications IS 13252(Part 1):2010* 22 Smart Card Reader IS 13252(Part 1):2010* 23 Mobile Phones IS 13252(Part 1):2010* 24 Self-Ballasted Led Lamps For General Lighting Services IS 16102(Part 1):2012* 25 Dc Or Ac Supplied Electronic Control gear For Led Modules IS 15885(Part 2/Sec 13):2012* 26 Power Adaptors For Audio, Video Similar Electronic Apparatus IS 616:2010* 27 Power Adaptors For It Equipment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S 14286 : 2010/ IEC Photovoltaic (PV) Modules (Si Wafer Based) 61215 : 2005, IS/IEC 61730 (Part 1) : 2004 IS/IEC 61730 (Part 2) : 2004 46 Thin-Film Terrestrial Photovoltaic (PV) Modules (A-SI, CIGS And CDTE) IS 16077 : 2013/ IEC 61646 : 2008, IS/IEC 61730 (Part 1) : 2004 IS/IEC 61730 (Part 2) : 2004 47 Power Invertors For Use In Photovoltaic Power System IS 16221 (Part 2) : 2015 48 Utility-Interconnected Photovoltaic Inverters IS 16169 : 2014 4.13 From the Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012, referred above it is quite evident that the said order is applicable in respect of the Goods, as defined and specified in the schedule. Further the goods should be conformity with specified Indian Standard as per the schedule. Both the authorities below have failed to specify the Indian Standard as per the Schedule, to which these imported goods, i.e. LED Winches sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified the impugned goods intentionally i.e. 110 pcs of Winches under chapter 84253100 with lower duty structure with sole purpose to evade payment of legitimate Customs duty classifiable under CTH 94054090 with higher duty structure of (20% + 10% + 12%) therefore same are found to be noncompliance of BIS which is mandatory, hence restricted to import. The importer is being attempted to clear the prohibited goods, without BIS Certification. 4.15 We agree to the submission made by the appellant that time and again it has been held by various authorities that mere misclassification of goods, is not misdeclaration for which the goods can be held liable for confiscation under Section 111 (m) of the Customs Act, 1962. However we find that the Assistant Commissioner has for confiscation not only invoked Section 111 (m) but has also held that the goods are prohibited goods and are liable for confiscation under section 111 (d) too. Since the goods have been held as prohibited for the reason of failure to comply with the requirements of compulsory registration of the goods as per Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012, and we are remanding the m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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