9911796707
TMI Blog2021 (6) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... delivery of Statue. Owing to the size of the statue, it was not possible to have the statue either commissioned and / or delivered as such and hence the same was fabricated in pieces and was shipped in the form of BronzeCladding Panels (Micro Panels) which were delivered in multiple shipments. The said micro panels were reassembled by way of welding process into macro panels and the statue was finally installed at the relevant site in Gujarat. The statue imported as micro panels but the components that were assembled by way of welding i.e. the goods on which such welding process was carried out. The process of assembly by welding was undertaken by using filler metals (welding electrodes of rods). The filler metal i.e. welding electrodes of rods were separately imported and duly classified under CTH 8311. The appellant classified the statue imported in micro panel under the CTH 8306 2110 which is subject to IGST @ 12%. A Show Cause Notice was issued to the appellant alleging that classification ought to have been made under the CTH 8311 9000 which is subject to 18% IGST. The adjudicating authority has held that the classification under CTH 8311, confirmed the demand of differential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a whole itself. In the present case it is an undisputed fact that imported goods are components or parts of the main statute itself imported in a completely knockdown (CKD) form and hence the same would be classifiable under CTH 8306. 2.1 Learned Counsel submitted additional submission dated 09.02.2021 after hearing took place on 02.02.2021 wherein it is submitted that it is settled law that onus of establishing that the imported product falls under a particular classification entry is squarely upon the Revenue. In this regard, he placed reliance on the following judgements. * Hindustan Ferrodo Limited 1997 (89) ELT 16 (SC) * HPL Chemicals Limited 2006 (197) ELT 324 (SC) * Swarna Oil Service 2020 TIOL 970 CESTAT-AHM * PEPSICO HOLDINGS PVT. LTD.-2019 (25) GSTL 271 (Tri.-Mum) * WARNER HINDUSTAN LTD.-(1999) 6 SCC 762 2.2 He further submits that even the Authorized Representative in his written submission filed under a cover of letter dated 01.02.2021 has not disputed that the impugned order fails to establish as to how the imported goods are classifiable under CTH 8311 9000. The entire thrust in the argument made by Learned Departmental Representative was that classificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustan Limited vs CCE 1999 (6) SCC 762. 2.6 Without prejudice to the above, in the course of the personal hearing it was put to the appellant to suggest alternate tariff entry under which imported goods could have been classified. In this regard, without prejudice to the contention that the proceedings initiated against the appellant are unsustainable as the classification proposed by the Revenue under CTH 8311 is absolutely untenable, baseless and bad in law only for the sake of argument, the alternate heading under which the imported goods could be classified by it could be CTH 9703 0010 which covers original sculptures and statutory in matter. As per HS Explanatory Notes to CTH 9703 the said entry inter alia covers original sculptures and statuary, ancient or modern. They may be in any material (stone, reconstituted stone, terracotta, wood, ivory, metal, wax etc.) in the round, in relief or intaglio (statues, busts, figurines, groups, representations of animals, etc. including reliefs for architectural purposes). It is relevant to note that the import duty leviable under this heading is exactly same as that under CTH 8306 2110 namely, 10% basic duty; 10% Social Welfare Surcharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of metal carbides; wire and wire rods of agglomerated metals, base metals powder used for metal spray. Revenue has classified the same under CTH 8311 9000 as others. From the description of the entry it is clear that only those goods which are used for soldering,brazing, welding and similar process are covered in the said entry. In the present case the goods imported by the appellant are not used for any of the said process described in CTH 8311. The goods itself is a part of bronze metal which are piece by piece joined by welding, soldering process achieved the form of Statue of Unity. Therefore, it is clear that the goods imported were not used as a welding material but the goods itself is a end product that is part of statue. As submitted by the appellant for the purpose of joining piece by piece the part of the statue, they have imported separately the welding material. Those welding material are in fact classifiable under CTH 8311 and not the present goods imported by the appellant. The revenue either in the Show cause notice or in the impugned order did not give a plausible reasoning why the imported goods i.e. parts of statue are classifiable as welding material under CTH 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced on behalf of the appellants, the appeal should, nonetheless, have been allowed." 7. The similar view was taken by the Apex Court in the case of HPL Chemicals Limited (supra) wherein it was held: "29. This apart, classification of goods is a matter relating to chargeability and the burden of proof is squarely upon the Revenue. If the Department intends to classify the goods under a particular heading or sub-heading different from that claimed by the assessee, the Department has to adduce proper evidence and discharge the burden of proof." 8. Even assuming that the classification resorted by the appellant is incorrect but since the Revenue's claim under CTH 8311 is absolutely incorrect the classification adopted by the appellant will sustain. This has been held by the Tribunal in the case of Pepsico Holding Pvt. Ltd. (supra) as under: 8. In the light of the above, we cannot decide on a classification that has not been pleaded before us. Once the classification proposed by Revenue is found to be inappropriate, that claimed, while clearing the goods, will sustain even if it may appear to be inappropriate. We cannot also, in our appellate capacity, direct or accord the lati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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