TMI Blog2024 (1) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... n exclusion in HSN Explanatory Notes to Heading 8708 where electronic controllers are excluded from Heading 8708. In view of the settled position of law as held in various decisions, the subject goods are not classifiable under CTI 87089500 as Safety airbags with inflator system; parts thereof , as claimed by the Department. Further, it is settled position of law that the burden of proving the correct classification is on the Department as held in various cases relied upon by the respondent. It is a settled law that when the classification proposed by the department cannot be sustained, then irrespective of the fact as to whether or not the classification of the assessee is proper, the same would prevail. The Hon ble Apex Court in the case of Warner Hindustan Ltd. [ 1999 (8) TMI 75 - SUPREME COURT] has held The Tribunal also noted that both sides have not adduced any detailed arguments as to why these tablets can be considered as confectionery item or otherwise although a plea is there from the Collector in the grounds of appeal that the goods are assessable under Tariff 17.04 . In our opinion, the Tribunal was quite wrong in these circumstances in allowing the appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 Commissioner (Appeals) vide impugned Order-in-Appeal No.882/2014 dt. 11.06.2014 upheld the findings in the OIO dt. 12.07.2013 and rejected the department appeal. Hence the present appeal. 3. Heard both sides and perused the materials on record. 4. The Ld. A.R appearing for the Revenue submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submits that the impugned order is not legal and proper on the grounds that : (a) The Commissioner (Appeals) has solely relied on Harmonised System of Nomenclature, wherein the heading 87089500 was introduced from 01.04.2007, correspondingly, in Customs Tariff Act, 1975 / Central Excise Tariff Act, 1985, the following heading was introduced : Safety Airbag with inflator system; parts thereof So, all the parts of safety airbags with inflator system, without any exception, need t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded 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 that the Heading excludes remote sensors or electronic controllers, as they are not considered to be parts of the inflator system. He further submits that Commissioner (Appeals) has observed that HSN Explanatory Notes cannot be relied upon to properly determine the classification and the exclusion provided in the HSN Explanatory Notes will not apply to reading statutory entries and that in the absence of any such statutory exclusion, the subject goods cannot be considered to have been excluded from the purview of CTH 8708. He further submits that the HSN Explanatory Notes is a guide to interpret Customs Tariff Act, 1975. The WCO has published detailed Explanatory Notes to the HSN which have long been recognized as a safe guide to interpret the Schedules to the Customs Tariff. He submits that in order to interpret the relevant Headings, Sub-headings and Section Notes under the First Schedule of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 the parties and perusal of materials on record, we find that the only issue involved in the present case is whether the subject goods viz. Sensor Bag Assembly is classifiable under CTI 87089500 as claimed by the Department or classifiable under CTI 90328910 as claimed by the respondent. Further, we find that the original authority after considering the submissions of the respondent came to the conclusion that the subject goods did not merit classification under CTH 9032 as claimed by the respondent because in order 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. Rather, the original authority held that the subject goods would merit classification under Heading 8537. Further, we find that the appellate authority has als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific 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 Glossary of Terms of the ISI. 10. Further, the Apex Court in the case of Commissioner of Central Excise, Delhi-III Vs UNI Products India Ltd. reported in 2020 (372) ELT 465 (SC),has held that HSN Explanatory Notes have strong persuasive value. The relevant portion of the decision is extracted below for ease of reference : Revenue s argument is that the Explanatory Notes have persuasive value only. But the level or quality of such persuasive value is very strong, as observed in the judgments of this Court to which we have already referred. Moreover, the Commissioner himself has referred to the Explanatory Notes in the order-in-original while dealing with the respondent s stand. Thus, we see no reason as to why we should make a departure from the general trend of taking assistance of these Explanatory Notes to resolve entry related dispute. 11. We also find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y . 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 authorities prior to the stage of the appeal to the Tribunal was that the tablets were patent or proprietary medicines classifiable under Heading 3003.19. The Tribunal also noted that both sides have not adduced any detailed arguments as to why these tablets can be considered as confectionery item or otherwise although a plea is there from the Collector in the grounds of appeal that the goods are assessable under Tariff 17.04 . In our opinion, the Tribunal was quite wrong in these circumstances in allowing the appeal of the Excise authorities and classifying the mint tablets as items of confectionery under Heading 17.04. The correct course for the Tribunal to have followed was to have dismissed the appeal of the Excise authorities making it clear that it was open to the Excise authorities to issue a fresh show cause notice to the appellant on the basis that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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