TMI Blog2023 (7) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... e are in agreement with the findings in the impugned order. The terms hard disk drive used in the notification has not been amplified either by adding external or internal . On this simple premise alone, exemption to the said item cannot be denied. Chennai Bench of the Tribunal vide final order No.42907/2018 dated 16.11.2018 in appellant s own case [ 2019 (2) TMI 264 - CESTAT CHENNAI] held that This Tribunal in the case of M/s. Fortune Marketing Pvt. Ltd., vide Final Order, dated 24.08.2017 [ 2017 (8) TMI 1506 - CESTAT CHENNAI] has already decided the issue in favour of the assessee. As the issue is squarely covered by the above decision, there are no merits in the impugned order - appeal allowed. - Customs Appeal No. 85678 of 2015 - FINAL ORDER NO. A/85140/2023 - Dated:- 23-1-2023 - Mr. Sanjiv Srivastava, Member (Technical) And Dr. Suvendu Kumar Pati, Member (Judicial) For the Petitioner : Shri T. Viswanathan, Advocate, For the Respondent : Shri Ashwini Kumar, Additional Commissioner, ORDER PER: SANJIV SRIVASTAVA This appeal is directed against Order-in-Original CAO No. CC-RS/08/2014-15 ACC (Adj)(I) dated 28.11.2014 passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest and any otherdues payable are to be recovered from them. (vii) I hold the goods of the declared CIF value of Rs.27.22,75,187/- (Rupees Twenty Seven Crores Twenty Two Lakhs Seventy Five Thousand One Hundred Eighty Seven only) as listed in Annexure-A to the Show Cause Notice liable for confiscation under Section 111(m) of the Custom Act, 1962. Since the goods are not physically available, redemption fine is not imposable (As discussed in para 28 above). (viii) I impose penalty equal to the duty plus applicable interest, i.e. Rs 1,62,04,290 (Rs. One Crore Sixty Two Lakhs Four Thousand Two Hundred Ninety only) plus applicable interest, under Section 114A of the Customs Act, 1962, on the importer M/S. INGRAM MICRO INDIA LTD., MUMBAI, (B) with respect to the goods imported through Air Cargo Complex, New Delhi:- (i) The Ext. Hard disc drives/Hard Disc Drives' imported by M/s.INGRAM MICRO INDIA LTD, MUMBAI, by classifying under tariff item 84717020 under various Bills of Entry, as detailed in Annexure-13 to the Show Cause Notice, are reclassified as 'Removable or exchangeable disc drives' under tariff item 84717030. (ii) The exemption from p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- (Rs. One Crore Sixty Seven Lakhs Seventy Five Thousand Two Hundred Forty Five only) plus applicable interest, under Section 114A of the Customs Act, 1962, on the importer M/s. INGRAM MICRO INDIA LTD., MUMBAI (C) With respect to the goods imported through Air Cargo Complex, Chennai:- (i) The 'Ext. Hard disc drives/Hard Disc Drives' imported by M/s. INGRAM MICRO INDIA LTD, MUMBAI, by classifying under tariff item under various Bills of Entry, as detailed in Annexure-C to the Show Cause Notice, are reclassified as 'Removable or exchangeable disc drives under tariff item 84717030 (ii) The exemption from payment of CVD, claimed under Notification No. 06/2006-CE dated 01.03.2006 (Serial No. 17) and Notification No. 12/2012-CE dated 17.03.2012 (Serial No. 255), for these goods imported under various Bills of Entry as mentioned in Annexure-C to the Show Cause Notice is denied; (iii) The additional duty of customs (CVD) is to be charged @ 10% adv. in terms of Notification no. 2/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12% (tariff rate) w. e. f. 17.03.2012, along with Education Cess, Secondary Higher Secondary Education Cess and SAD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drives . By doing so, they have wrongly claimed the benefit under Sr. No.17 of exemption Notification No. 06/2006-CE dated 01.03.2006 till 16.03.2012 and thereafter under Sr. No. 255 of Notification No. 12/2012-CE dated 17.03.2012. 2.3 As a result of such misclassification, appellant short paid the duty as indicated in table below:- Port of Import CIF value of imports (Rs.) Differential duty payable (Rs.) Amount paid during investigation (Rs.) Air Cargo Complex, Mumbai 27,22,75,187/- 1,62,04,290/- 1,54,54,623/- Air Cargo Complex, Delhi 28,40,77,659/- 1,67,75,245/- 1,52,61,152/- Air Cargo Complex, Chennai 32,93,22,596/- 1,93,36,959/- 1,71,51,833/- Total 88,56,75,442/- 5,23,16,494/- 4,78,67,608/- 2.4 After completion of enquiry, a show cause notice dated 05.06.2013 asking the appellant to show cause as to why:- (A) With respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIF value of Rs. 27,22,75,187/- (Rupees Twenty Seven Crores Twenty Two Lakhs Seventy Five Thousand One Hundred Eighty Seven only) as listed in Annexure-A to the SCN should not be held liable for confiscation under Section 111(m) of the Custom Act, 1962; (viii) why penalty under Section 112(a) or Section 114A of the Customs Act, 1962. should not be imposed on them for their willful acts and omissions as discussed above. (B) With respect to the goods imported through Air Cargo Complex, New Delhi, to the Commissioner of Customs (Import General), Airport New Delhi, having his office at New Custom House, Near I. G. I. Airport, New Delhi 110037 as under:- (i) Why 'Ext. Hard disc drives'/'Hard Disc Drives' imported by them, by classifying under CTH/CETH 84717020 under various Bills of Entry, as detailed in Annexure-B to the SCN, should not be reclassified as 'Removable or exchangeable disc drives under CTH/CETH 84717030 (ii) why the exemption from payment of CVD, claimed under Notification No. 06/2006-CE dated 01.03.2006 (Serial No. 17) and Notification No. 12/2012-CE dated 17.03.2012 (Serial No. 255), for these goods imported under various Bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der CTH/CETH 84717020 under various Bills of Entry, as detailed in Annexure-C to the SCN, should not be reclassified as 'Removable or exchangeable disc drives under CTH/CETH 84717030; (ii) Why the exemption from payment of CVD, claimed under Notification No. 06/2006-CE dated 01.03.2006 (Serial No. 17) and Notification No. 12/2012-CE dated 17.03.2012 (Serial No. 255), for these goods imported under various Bills of Entry as mentioned in Annexure-C to the SCN should not be denied; (iii) Why additional duty of customs (CVD) should not be charged @ 10% adv. in terms of Notification no. 2/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12% (tariff rate) w. e. f. 17.03.2012, along with Education Cess, Secondary Higher Secondary Education Cess and SAD at the applicable rates for the goods imported under various Bills of Entry as detailed in Annexure-C to the SCN. (iv) Why additional duty of customs (CVD) leviable @ 10% adv. in terms of Notification no. 2/2008- CE dated 01.03.2008, as amended (till 16.03.2012) and @12% (tariff rate) w. e. f. 17.03.2012 along with SAD and Education Cess and Secondary Higher Secondary Education Cess totally amounting to Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are in favour of the appellant. 3.3 Learned AR submits that the appeal filed by the appellant along with other appeals was earlier rejected by the Tribunal vide order No. A/90720-90723/WZB/CB dated 04.10.2016. Against this order, appellant had filed appeal before the Hon ble Supreme Court. Subsequently they withdrew the appeal and filed application for rectification of mistake. By the order of Tribunal appeal of another appellant namely Fortune Marketing Pvt. Ltd., was also dismissed and Fortune Marketing Pvt. Ltd. also had filed appeal before the Hon ble Supreme Court. Appeal filed by Fortune Marketing Pvt. Ltd. has been dismissed by Hon ble Supreme Court as reported at [2017 (347) ELT A126 (SC)]. As the appeal against the same order has been dismissed, the issue has acquired finality and following the said order, this appeal should be dismissed. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 The arguments raised by the learned AR were considered by the Tribunal while considering the application for rectification of mistake. While allowing the ROM filed by Fortune Marketing Pvt. Ltd. vide order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal filed by Fortune Marketing Pvt. Ltd. for final hearing (post the recall of the order dated 4th October 2016) and passed final order dated 4th April 2017 allowing the appeals and deciding the issue in favour of Fortune Marketing Pvt. Ltd. The appeal filed by respondent No. 2 before this Court against the final order dated 4th April 2017 in Fortune Marketing Pvt. Ltd. was dismissed on maintainability vide order dated 19 th September 2018. Before seeking leave of the Apex Court to withdraw the appeal, petitioner had filed in the Apex Court an application to bring on record the order passed by CESTAT on the rectification application filed by Fortune Marketing Pvt. Ltd. and others allowing the same. This is evident from the Apex Court's office report dated 2nd March 2017 in respect of petitioner's case. 8. We have considered the order of the Apex Court where of course there is no specific express leave being granted. Mr. Mishra submitted that there are plethora of judgments discussing the doctrine of merger because having filed the appeal under Section 130E of the Customs Act, 1962, the order allowing withdrawal of the appeal would mean that the said orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India and may not bar other remedies. 12. Having heard the counsels, in the interest of justice, we are inclined to allow the petition and direct CESTAT to consider petitioner's rectification application. Reasons for us to arrive at this conclusion are as under : (a) the order dated 4th October 2016 has been a common order in which four appellants were heard including petitioner; (b) rectification application of the remaining three appellants has been allowed; (c) the reason for allowing the rectification application to those appellants is because CESTAT accepted that it had not considered the clarification issued by the Department of Electronics and Information Technology, Government of India though it was produced before CESTAT. Paragraph 3.1 of the said order dated 13th December 2016 allowing rectification application reads as under : 3.1. On careful consideration of the submissions made by both sides and perusal of our final order dated 04.10.2016, it is noticed that the clarification issued by Department of Electronics and Information Technology, GOI though produced before us escaped our attention while recording the order as also other mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exchangeable disk drive during the course of hearing. We note that the classification of external hard disk drive assumes significance because of concessional rate of duty available to only hard disk drive not to removable or exchangeable disk drives. The Revenue considers the imported items under 8471 70 30 whereas the impugned order by the Commissioner (Appeals) held the product under Heading 8471 70 20. The latter entry is eligible for concessional CV duty. We have examined the impugned order and grounds of appeal, closely. First of all, we note that the exemption notification specifies tariff heading up to six digits only, 8471 70, which covers both, hard disk drive and removable or exchangeable disk drives. Further, the next column of the table for description explain the goods only as hard disk drive among many other items. On careful consideration of the technical specification furnished, and the sample of imported items along with tariff entries and the exemption notification, we are in agreement with the findings in the impugned order. The terms hard disk drive used in the notification has not been amplified either by adding external or internal . On this simple pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Fortune Marketing Ltd., M/s. Ingram Micro India Ltd, filed an application for withdrawal of appeal before the Supreme Court even before their appeal was admitted. The Hon'ble Apex Court granted permission to withdraw the appeal and the same was dismissed as withdrawn by judgment of Apex Court dated 03.03.2017. Later, M/s. Ingram Micro India Ltd., filed an ROM application before the CESTAT, Mumbai against Final Order, dated 04.10.2016. 5. Meanwhile, CESTAT, Delhi in the case of Commissioner of Customs, New Delhi Vs M/s. Supertron Electronics Ltd., as reported in 2017-TIOL-125-Cestat Del. (decided on 06.01.2017) allowed exemption on imported External/Removal Hard Disc Drive and dismissed the appeal filed by department against Commissioner (Appeals) order. 6. Pursuant to the ROM applications by M/s. Fortune Marketing Ltd., the Tribunal reheard the appeal and recalled its Final order, dated 04.10.2016 allowing the appeal filed by assessee and holding that exemption is eligible. While rehearing the appeal pursuant to ROM application, the Tribunal considered the issue of exemption on the basis of the Office memorandum, dated 05.06.2013 issued by Ministry of Communicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternal/Removable HDD. 9. Heard both sides, the issue is whether the goods imported by the respondents, namely, External/Removable HDD is eligible for exemption as per Sl.No.255 of Notification No.12/2012. This Tribunal in the case of M/s. Fortune Marketing Pvt. Ltd., vide Final Order, dated 24.08.2017 (supra) has already decided the issue in favour of the assessee by following the decision of CESTAT, Delhi in M/s. Supertron Electronics Pvt. Ltd., as reported In 2017-TIOL-125-CESTAT-DEL. 10. Although, department had filed appeal before Hon'ble Supreme Court against the decision of CESTAT, Delhi in the case of M/s. Supertron Electronics Pvt. Ltd., vide judgment dated 25.10.2017, the Apex Court has dismissed the appeal filed by the department. The Interim Order/Daily Order of Hon'ble Apex Court in the case of M/s. Supertron Electronics Pvt. Ltd., is produced by the learned counsel for respondent. On 08.09.2017, the Hon'ble Apex Court in the said appeal filed by department noted that the learned counsel for the respondents appearing before the Supreme Court has brought to the notice of the Hon'ble Court that the appellant/department has not disclosed the enti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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