TMI Blog2021 (6) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 8311 9000 - It is admitted fact that the part of the statue imported by the appellant is complete part and it does not have any coating or cored with flux material, therefore, it is clear that that parts / components of statue imported by the appellant by any stretch of imagination cannot be brought into the tariff entry of CTH 8311 9000fpr the simple reason that the same is not a welding material. Thus, irrespective whether the classification claimed by the appellant is correct or not since the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut. 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 IGST along with applicable interest and penalty under Section 117 of the Customs Act, 1962. The appellant have challenged the above order of the Adjudicating Authority by way of filing the present appeal. 2. Shri Vishal Agarwal, Learned Counsel along with Ms. Dimple Gohil and Shri. Abhishek Deodhar the Advocates appeared on behalf of the appellant. Shri Vishal submits that Revenue classified the imported goods i.e. Cladding Panel for installation of Statue under CTH 8311. The entry under this head covers goods which are used for welding process and not the goods on which welding process is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stan 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 classification claimed by the appellant under 8306 was incorrect. 2.3 According to the Learned DR, CTH 8306 2110 covers statutes which has been defined in Merriam Webster Dictionary to mean a small statue while the International Webster Comprehensive Dictionary define the same to mean a Statue not more than 1/2 the life size. 2.4 In this regard he submits that the contention of the Learned Departmental Representative is beyond the scope of the allegation levelled in the Show Cause Notice as also the findings arrived at by the Respondent in the impugned orders. It is for the first time during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H 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 and 12% IGST in terms of Serial Number 238 of Schedule-2 to Notification No. 1/2017 IGST (rate dated 28.06.2017). Therefore, in any case demand of differential duty does not sustain. 3. Shri Vinod Lukose, Learned (Superintendent) Authorized Representative appearing on behalf of the Revenue submitted a written submission dated 01/02/2021 wherein he reiterates the findings of the impugned order. In addition, he relied upon Webster Dictionary to submit that the Statues, under which the appellant has classified the imported goods, only covers small statues not the statues of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 8311 9000. If the contention of the Revenue is accepted, then any two metal parts of any goods if it is fabricated by the process of welding that goods are also classifiable under CTH 8311 which will be absolutely absurd contention and shall not be tenable. We find force in the appellant s submission that the goods classifiable under CTH 8311 must be coated or cored with flux material. It is admitted fact that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular 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 latitude for invoking Section 11A of the Central Excise Act, 1944 by obliteration of the proceedings leading to the impugned order. The mandate of the law pertaining to recovery of duties not paid or short-paid will have to be followed to the letter. 9. The above decision of the Tribunal is based on the view taken by the Hon ble Supreme Court in the case of Warner Hindustan Limited (supra) w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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