TMI Blog2024 (4) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... that the issue in contention is whether exemption under Serial No. 29 30 of Notification No.24/2005-Customs dated 01.03.2005 is applicable to the impugned goods or not. In answering to the issue in dispute, learned Commissioner of Customs (Appeals), had concluded that Open Cell cannot be considered as the Liquid Crystal Display (LCD) itself, as certain other components have to be attached to convert it into a fully functional LCD. We also find that such an examination has not been carried out. This is for the reason that firstly, the description of the goods specified in the exemption entry at Sl. No. 39 viz., Liquid Crystal Devices has not been explained to state whether the imported goods is the Liquid Crystal Device or not. Instead, it has been simply stated that the imported goods are not a fully functional Liquid Crystal Display , as open cell needs to be added with certain other components to make it so. Even the original authority did not examine these aspects despite the claim made by the appellants that Open Cell is a Liquid Crystal Device in terms of HSN Explanatory note to the heading 8524. The facts of the case further indicate that in the Original order dated 17.11.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or concession of duty issued under notifications issued under Section 25 ibid are required to be examined and determined in order to fulfill the requirements of reassessment in terms of Section 2(2) ibid. We are of the considered view that the impugned order passed by the learned Commissioner (Appeals) cannot be sustained on merits. However, we are also of the considered view that in order to examine the various issues of reassessment of impugned goods covered under the two Bills of Entry (B/E) No. 9574139 dated 16.07.2022 and B/E No.2453614 dated 15.09.2022 for deciding upon the eligibility to Customs duty exemption benefits under Sl. No. 29 and 30 of Notification No.24/2005-Customs dated 01.03.2005, as amended, the matter needs to be decided afresh in de novo proceedings by the original authority. Therefore, the impugned orders are set aside and the appeals are allowed in favour of the appellants by remanding the matter for a fresh decision by Original Authority after duly taking into consideration the various submissions made by the appellants and the points advanced by Revenue in these appeals before the Tribunal. In the result, the appeals are allowed by way of remand for fres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls under CTI 9013 90 10. As a specific customs tariff item 8529 90 30 was created for open cell in the Finance Act, 2020, the appellants have started classifying the imported goods under CTI 8529 90 30 and associated parts under CTI 9013 90 10. With effect from 01.01.2022, the First Schedule to the Customs Tariff Act, 1975 was amended to include the changes made by the World Customs Organisation in the HSN, which inter-alia, introduced a new CTH 85.24 covering flat panel display modules, whether or not incorporating touch sensitive screens and parallelly CTH 90.13 was also amended to remove Liquid Crystal Devices from its scope of coverage and specific customs tariff item 8529 90 30 earlier created for open cell was also omitted. Accordingly, the appellants had revised the classification in terms of the above amendments, by classifying open cell under CTH 85.24 and associated parts of open cells under CTH 85.29. During the disputed period the appellants had imported open cells and associated parts thereof under two Bills of Entry (B/E) No. 9574139 dated 16.07.2022 and B/E No.2453614 dated 15.09.2022 and self-assessed by availing Customs duty exemption under Sl. No. 29 and 30 of No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 574 (Tribunal) (ii) Samsung India Electronics P Ltd. Vs. Commissioner of Customs, Noida 2015 (326) E.L.T. 161 (Tri.- Del.) (iii) Videocon Industries Ltd. Vs. CCE, Aurangabad 2009-TIOL-653- CESTAT-MUM (iv) Commissioner of Central Excise, Aurangabad Vs. Videocon Industries Ltd. 2023 (384) E.L.T. 628 (S.C.) (v) H.C.L. Limited Vs. Collector of Customs, New Delhi 2001 (130) E.L.T. 405 (S.C.) (vi) Secure Meters Limited Vs. Commissioner of Customs, New Delhi 2015 (319) E.L.T. 565 (S.C.) (vii) Asst. CC Vs. Daga Nylomet 1993 (67) E.L.T. 270 (Cal. HC) (viii)West Coast Paper Mills Vs. CTO (2002) 127 STC 53 (Mad. HC) (ix) Andhra Patrika, Madras Vs. CC - 1983 (13) E.L.T. 1103 (CEGAT) (x) T.I. Diamond Chain Vs. CC - 2004 (177) E.L.T. 209 (Tri.- Del.) 3.3 Learned Authroised Representative appearing for the Revenue reiterated the findings recorded by the learned Commissioner (Appeals) in the impugned order and stated that notification No.25/2005-Customs dated 01.03.2005 cover under its scope ITA bound items, and television classifiable under CTH 8528 are not at all covered in this notification. Consequent to the changes introduced in WCO HSN with the flat panel display module, with effect from 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled during the disputed period. 6.1 From the factual matrix of the case, we find that imported goods under dispute covered under B/E No. 9574139 dated 16.07.2022 have been declared as Open Cell 31.5 CS ST3151A07-2 32HIF1-11069908 under item Sl. No.4 by claiming customs duty exemption under Sl. No. 29 of Notification No.24/2005-Customs dated 01.03.2005, and Reflector-32 0.15MM 731.4MM 421.6MM 11069910 under item Sl. No.6; Diffuser Plate-32 1.0MM 713 11069910 under item Sl. No.7; Prism sheet -32 0.315MM 421.1MM 11069916 under item Sl. No.12; Bezel front cabinet -32D2010 32HIF1 11070377 under item Sl. No.30; Back cover metal (Panel) - 32D2000 R=Y - 11073036 under item Sl. No.44, and claiming customs duty exemption under Sl. No. 30 of Notification No.24/2005-Customs dated 01.03.2005, as other parts of Open Cell out of total 46 items declared in the above B/E. The imported goods were self-assessed by the appellants in terms of Section 17(1) ibid. During the process of verification of such selfassessment by the proper officer of customs, initially under the Faceless Assessment Group (FAG) and later by the Port Assessment Group (PAG), the Department have objected to the claim of the cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department have objected to the claim of the customs duty exemption claimed by the appellants and raised certain queries. These questions were replied by the appellants. However, as the proper officer was not convinced with the justification given by the appellants and they did not submit the details of their status with respect to Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017 for availing the exemption under Sl. No. 515A, 516 of Notification No. 50/2017- Customs, and replied negatively for availing any other customs duty exemption, the Assistant Commissioner of Customs of Appraising Group-VA, as proper officer proceeded for issue of an order under Section 17(5) ibid. In such re-assessment of the impugned goods, contrary to the self assessment done by the appellants-importer, he had issued the Order-in-Original dated 29.11.2022, in denying the Customs duty exemption claimed by the appellants and ordering the re-assessment at merit rate of duty. The relevant portion of the above Order is extracted and given below: ORDER 16(i) I reject the declared notification benefit of Notification NO. 24/2005- Customs dated 01.03.2005 Sr. No. 29, claimed for item No. 10 24 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 30 of Notification No. 24/05-Cus., dated 01.03.05 is applicable on the impugned goods or not as there has been no dispute the classification of Open Cell under Heading 85.24 and associated parts under Heading 85.29. 9. I find that as per the impugned Orders-in-Assessment issued by the OA dated 17.11.2022 29.11.2022, Open Cell and its parts are eligible for concessional rate of BCD @ 5%/10% in terms of Sr. No. 515A and 516 of Notification No. 50/17-Cus. dated 30.06.17, and are not eligible for complete exemption from BCD under Notification No. 24/05-Cus, dated 01.03.05 as claimed by the Appellants. OA has however, not objected on the self assessed classification of the goods Open Cell under Heading 85.24 and associated parts under Heading 85.29. I find that the Hon ble Supreme Court in the case of ITC Ltd., Vs. VVE, Kolkata-IV [2019(368) E.L.T.(SC)] has held that the order of self-assessment is nonetheless an assessment order passed under the Act and the revenue, as well as assessee can also prefer an appeal aggrieved by an order of assessment. 10. Open Cell comprises of LCD devices sandwiched in-between two sheets of any material such as plastic/glass and basically it is heart of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provided for parts of open cell vide Notification No.50/2017-Cus. as amended vide Notification No. 32/2018-Customs dated 23.03.2018 (Sr. No.516). 13. In view of the above, I do not find any reason to interfere with the Order-in-Assessment No. 721/2022-23/AC/Grp.VA/NS-V/JNCH dated 17.11.2022 Order-in-Assessment No. 772/2022-23/AC/Grp.VA/NS-V/ JNCH dated 29.11.2022 passed by the Assistant Comm. of Customs, Group VA, JNCH and reject the Appeal No(s) 46/2023 and 1372/2022 filed by the appellant M/s MIRC Electronics Limited. 7. On careful reading of the impugned order passed by the learned Commissioner of Customs (Appeals), it transpires that he has given a specific finding that there is no dispute in the classification of impugned goods viz. Open Cells under CTH 85.24 and in classification of associated parts of Open Cells under CTH 85.29. Further, he had stated that the issue in contention is whether exemption under Serial No. 29 30 of Notification No.24/2005-Customs dated 01.03.2005 is applicable to the impugned goods or not. In answering to the issue in dispute, learned Commissioner of Customs (Appeals), had concluded that Open Cell cannot be considered as the Liquid Crystal Displ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of heading 8471 xx xx xx 29 8524 Liquid crystal devices for goods mentioned at Sl. Nos. 1 to 38A 30 8529 Parts of liquid crystal devices for goods mentioned at Sl. Nos. 1 to 38A xx xx xx 38A 8541 42 00 or 8541 43 00 All goods for use solely and exclusively with goods covered under S. Nos. 1 to 38. 39 Any Chapter except Chapter 74 All goods except solar tempered glass or solar tempered (anti-reflective coated) glass] for the manufacture of goods covered by S. Nos. 1 to 38 above, provided that the importer follows the procedure set out in the Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017. Plain reading of the above Notification provides that the imported goods classifiable by specific heading or sub-heading or tariff item in Column (2) of the Table and covered under the description in column (3) are exempt from the payment of whole of Customs duty as stated therein. The description of the goods mentioned in various serial number of the above notification are of different types viz., all goods , all goods of a kind used solely or principally used in , all goods for use solely and exclusively with , specific goods like Liquid Crystal Devices for goods mentioned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CBIC No. 15/2022-Customs dated 20.07.2022 issued in the context of amendment to Sl. No.515A of Notification No.50/2017- Customs dated 30.06.2017 in respect of open cells and the details of such instructions have not been taken into consideration and discussed in the impugned order. 8.3 The facts of the case further indicate that in the Original order dated 17.11.2022, customs duty exemption benefits under Sl. No.515A and 516 of Notification No.50/2017-Customs dated 30.06.2017 have been extended, whereas in the Original order dated 29.11.2022, merit rate of duty has been applied without extending any duty exemption benefit, while reassessing the B/Es under Section 17(5) ibid, in contrary to the declaration made for selfassessment of goods by the appellants under Section 17(1) ibid. In this context, the learned Commissioner of Customs (Appeals), has not examined in detail how the exemption was allowed for imported goods under one B/E and in other B/E the same was rejected, without verifying the fulfillment of the exemption entries under Sl. No.515A and 516 of Notification No.50/2017-Customs dated 30.06.2017 which are subject to certain conditions under Customs (Import of Goods at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ED) u 15% - 8524 19 00 -- Other u 15% - - Other: 8524 91 00 -- Of liquid crystals u 15% - 8524 92 00 -- Of organic light-emitting diodes (OLED) u 15% - 8524 99 00 -- Other u 15% - The relevant notes to the chapter heading 8517 and 8524, which was introduced with effect from 01.01.2022, read as follows: 5. For the purposes of heading 8517, the term smartphones means telephones for cellular networks, equipped with a mobile operating system designed to perform the functions of an automatic data processing machine such as downloading and running multiple applications simultaneously, including third-party applications, and whether or not integrating other features such as digital cameras and navigational aid systems. 7. For the purposes of heading 8524, flat panel display modules refer to devices or apparatus for the display of information, equipped at a minimum with a display screen, which are designed to be incorporated into articles of other headings prior to use. Display screens for flat panel display modules include, but are not limited to, those which are flat, curved, flexible, foldable or stretchable in form. Flat panel display modules may incorporate additional elements, includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l circuits (iii) flat panel display modules with touch sensitive screens. 12. From the arguments advanced by the Advocates for the appellants, explaining in detail the relevant customs tariff entries and the Chapter 85 and 90, introduction of Chapter Note 7 chapter 85 and the explanation for the insertion of new CTH 85.24 and the entries therein, legislative history of open cell , technical literature and explanation in the form of an affidavit duly notarized stating that open cell are used for Television or monitor or display screen application and the various process involved in manufacture of such articles, concluding that open cell and panel are both LCD devices; various decisions of the Tribunal and the judgements of the Hon ble Supreme Court relied upon by them, there is legal force in the argument that the exemption benefit under Sr. No.29 30 of the Notification No.24/05-Cus., dated 01.03.2005 should be extended to the impugned goods. 13.1 We are also of the considered view that the authorities below in reassessment of impugned goods under Section 17(5) ibid, are required to pass a reasonable order, which is of a speaking nature, conforming to the requirements of the definit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior Courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the Life blood of judicial decision making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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