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TMI Blog2024 (1) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... ods are classifiable under CTI 87089500 as "Safety airbags with inflator system; parts thereof" and in this regard, four show cause notices dt. 21.03.2012, 28.05.2012, 12.10.2012 and 17.10.2012 were issued demanding differential duty to the tune of Rs.70,96,408/-along with interest on the ground that the subject goods are nothing but parts and accessories of motor vehicles and are specifically covered under CTI 87089500 as "Safety Airbag with inflator system; parts thereof". The respondent filed detailed reply to the show cause notice justifying their classification. After following due process, the original authority vide its Order-in-Original No.21261/2013 dt. 12.07.2013 held that the subject goods did not merit classification under CTH 9032 as in order to merit classification under Heading 9032, the instrument or automatic regulator must maintain a factor at a desired value by measuring it constantly or periodically. No such function is performed in the present case and hence, the department held that the subject goods would merit classification under Heading 8537. Aggrieved by such Order-in-Original, the department filed an appeal before the Commissioner (Appeals) and the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent heading 87089500 to these, as in HSN (Para-O to Chapter 87.08 introduced from 01.04.07). Hence in the absence of such statutory exclusion in the entry/heading 87089500, the above parts are also classifiable in unqualified part entry viz. "parts thereof" in 87089500, hence the decision of Commissioner (Appeals) in upholding the orders of the original authority is not acceptable. 5. On the other hand, Ld. Counsel for the respondent justified the impugned order and submitted that the subject goods are not classifiable under CTI 87089500 as "Safety Airbags with inflator system; parts thereof". He further submits that the learned Commissioner (Appeals) in the OIA has recorded the finding that the imported item is a programmable device and does activation of the airbag based on logic, timing and sequencing, it is a programmable controller falling under the heading 8537. The impugned order has further recorded that the subject goods are programmable controllers which merit classification under CTH 8537 and cannot be classified under CTH 8708 as parts of motor vehicle. He further submits that the impugned order has made reference to HSN Explanatory Notes to Heading 8708 to state th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Puma Ayruvedic Herbal (P) Ltd. v. Commissioner of C. Ex., Nagpur [2006 (196) E.L.T. 3 (S.C.)] 7. The Ld. Counsel further submits that it is also a settled position that the classification adopted by the assessee should be sustained when the Revenue is unable to discharge the burden to reclassify the product under a different heading. In this regard, the learned counsel placed reliance on the decision in the case of Warner Hindustan Ltd. Vs CCE - 1999 (113) ELT 24 (SC) wherein the Hon'ble Supreme Court held that when the classification proposed by the department cannot be sustained, then irrespective of the fact that as to whether or not the classification of the assessee is proper, the same would prevail. He further submits that the said decision has been followed by the Tribunal in the case of Pepsico Holdings Pvt. Ltd. Vs CCE - 2019 (25) G.S.T.L 271(Tri.-Mumbai) and also in the case of Sunrise Traders & Ors. Vs CC 2022 (1) TMI 468 CESTAT AHMEDABAD. Ld. Counsel finally submitted that when the classification proposed by the department fails, the correct course of action would be to sustain the classification adopted by the respondent. 8. After considering the submissions of both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Collector of Customs, Shillong Vs Wood Craft Products Ltd. cited supra wherein the Hon'ble Apex Court in para-12 has held as under : "12. It is significant, as expressly stated, in the Statement of Objects and Reasons, that the Central Excise Tariffs are based on the HSN and the internationally accepted nomenclature was taken into account to "reduce disputes on account of tariff classification". Accordingly, for resolving any dispute relating to tariff classification, a safe guide is the internationally accepted nomenclature emerging from the HSN. This being the expressly acknowledged basis of the structure of Central Excise Tariff in the Act and tariff classification made therein, in case of any doubt, the HSN is a safe guide for ascertaining the true meaning of any expression used in the Act. The ISI Glossary of Terms has a different purpose and, therefore, the specific purpose of tariff classification for which the internationally accepted nomenclature in HSN has been adopted, for enacting the Central Excise Tariff Act, 1985, must be preferred, in case of any difference between the meaning of the expression given in the HSN and the meaning of that term given in the Gl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Hindustan Ltd. (supra) wherein the Apex Court has held as under : "2. The appellant manufactures what it calls "Halls Ice Mint tablets". It classified these tablets as "Ayurvedic medicines" under Heading 3003.30 of the Central Excise Tariff. It was issued a notice to show cause why these tablets should not be classified under Tariff Heading 3003.19 as "patent or proprietary medicines". The Assistant Collector, after hearing the appellant, held that the tablets were patent or proprietary medicines classifiable under Heading 3003.19. In appeal by the appellant, the Collector of Central Excise (Appeals) held that the tablets were Ayurvedic medicines classifiable under Heading 3003.30. The Excise authorities went in appeal to the Tribunal and, for the first time, took the stand that the tablets were correctly classifiable under Heading 17.04 as "confectionery". The appellant, of course, stuck to its stand that the tablets were Ayurvedic medicines classifiable under Heading 3003.30. The Tribunal noted that the Assistant Collector had classified the tablets under Heading 3003.19, that is, as patent or proprietary medicines. This was clear indication that the stand of the Excise auth ..... 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