Delhi High Court
Commissioner Of Customs vs Emd Locomotive Technologies Pvt ... on 1 November, 2017
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CUSAA 60/2017
Date of decision: 1st November, 2017.
COMMISSIONER OF CUSTOMS ..... Appellant
Through: Mr.Aditya Singla, Sr. Standing
Counsel with Mr. Mohit Pandey, Adv.
versus
EMD LOCOMOTIVE TECHNOLOGIES
PVT LTD. ..... Respondent
Through: Mr. Arvind Datar, Mr. Sanjeev
Sachdeva, Ms. Neha Gulati, Ms.Kanika Jain,
Ms.Vrinda Bagaria, Advocates
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MS. JUSTICE PRATHIBA M. SINGH
SANJIV KHANNA, J. (ORAL):
The Commissioner of Customs, in these Appeals, has impugned
order dated 27th March, 2017 passed by the Principal Bench, Customs
Excise and Service Tax Appellate Tribunal.
2. The impugned order dismisses the application filed by the
appellant for condonation of delay of 749 days in filing of the appeal
against order dated 26th August, 2014 passed by the Commissioner
(Appeals).
3. Having heard counsel for the appellant, we are not inclined to
issue notice in the present appeal for we find that the Tribunal has
given cogent and good reasons as to why delay of 749 days should not
be condoned.
4. The respondents are importers of Traction Control Cabinet
(TCC, for short). Disputes arose as to whether TCC imported vide
Bill of Entry dated 26.07.2013 was classifiable under the heading
"8537" which covers Boards, panels, consoles, desks, cabinets and
other bases equipped with two or more apparatus of heading "8535" or
"8536", for electric control or the distribution of electricity, including
those incorporating instruments or apparatus of chapter 90 and
numerical control apparatus other than switching apparatus of heading
"8517". The case of the respondent/assessee was that the product,
traction control cabinet, was covered by the said entry/heading.
5. The stand of the Revenue, on the other hand, was that the
aforesaid product was classifiable under the heading "85044010"
which covers electrical transformers, static converters (for example
rectifiers) and inductors.
6. The order in original dated 12.09.2013 passed by the Additional
Commissioner of Customs rejected the stand of the
respondent/assessee and had classified TCC under the heading
"85044010" instead of "85371000" as claimed by the
respondent/assessee. The direction for confiscation of imported goods
valued at Rs.12,96,38,282.39 under Section 111(m) of the Customs
Act, 1962,giving an option to the respondent/assessee to redeem the
goods on payment of fine of Rs.7,50,000/- under Section 125 of the
aforesaid Act was issued. Penalty of Rs.2,50,000/- was also imposed
on the respondent/assessee.
7. The respondent/assessee preferred first appeal which was
dismissed vide order dated 22.08.2014.
8. The respondent/assessee thereafter did not prefer any appeal
and the order dated 22.08.2014 became final. In other words, the
respondent/ assessee has accepted the classification made by the order
in original dated 12.09.2013 that the imported goods, i.e. TCC were
classifiable or covered under the heading "85044010" and not under
the heading "85371000" as was their case.
8. We do not, under these circumstances, understand the need and
necessity for the appellant/Revenue to have filed an appeal before the
Tribunal as the stance of the appellant in the order in original was
accepted by the first appellate authority. It is obvious that the
appellant would not be a person aggrieved.
9. It is the case of the appellant/Revenue that in 2016,
investigation was made by Directorate of Revenue Intelligence,
Mumbai Zonal Unit on the basis of information received.
Consequently, they believe that TCC are covered under the heading
"8537", i.e. the heading/classification relied on by the
respondent/assessee themselves. As noticed above, the said claim of
the respondent/assessee was rejected and not accepted by the
appellant/Revenue, in respect of the Bill of Entry in question.
10. The tribunal in the impugned order has noticed the subsequent
change in the import duty, vide exemption which was granted to goods
classified under the heading "85044010". Consequently, the import
duty payable on the goods falling under the heading "85044010"
became lower than the duty payable under the heading "85371000".
That obviously cannot be a reason for the appellant/Revenue to go
back on its earlier stand in the present case.
11. The Commissioner (Appeals) has affirmed the order passed by
the Additional Commissioner. We fail to understand as to how the
appellant can be aggrieved and prefer an appeal, when their stand and
stance stands affirmed in appeal. In the aforesaid circumstances, we
do not think that any ground or reason for condonation of delay is
made out.
12. However, we will only clarify that the impugned order and the
present order would not be construed as an order which would
constrain or bind the Revenue from taking a stand that TCC, i.e.,
„traction control cabinets‟ are classifiable under the heading "8537" in
any other case relating to a separate Bill of Entry, if permissible in
law. We also clarify that in case the appellant/revenue takes this
stand, it will be open to the assessee/importer to contest the said
position.
With the aforesaid observations, the appeal is dismissed.
SANJIV KHANNA, J
PRATHIBA M. SINGH, J
NOVEMBER 01, 2017
pk
