M/S. COMPETITION TEAM TECHNOLOGY (INDIA) PVT. LTD. Vs. UNION OF INDIA, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE AND OTHERS

JUDGEMENT

(1.) The petitioner has filed this Writ Petition challenging the order passed by the second respondent in Order-in-Original, No.2 of 2018, dated 23.02.2018, by which the second respondent vacated the protest under which the duty amount of Rs. 4,03,44,922/- being the differential duty paid on the import of LCD panels (parts of television) vide 18 bills of entry for the period from 11.01.2018 to 16.02.2018 and confirmed and ordered to appropriate the said amount as duty paid under section 17(5) of the Customs Act, 1962.

(2.) Mr.R.Parathasarathy, learned counsel appearing for the petitioner submitted that the classification adopted by the notification for LCD panels is ultra vires the principles of classification prescribed by General Rules of interpretation and first Schedule of the Customs Act, 1975 and in this regard, the petitioner has filed separate Writ Petition seeking for a declaration to declare the said classification as ultra vires. It is submitted that LCD panels are classifiable under CTH9013 following the Rule 3(a) of the General Rules of interpretation and Note I of Section XVI. Since Liquid Crystal Devices is a specific description of LCD panels, classification under CTH 9013 is preferred over other general classification. It is further submitted that there are several Judicial pronouncements which have decided regarding the classification of LCD panels, namely, Secure Meters v. CC, New Delhi, 2015 (319) 565 (SC) and the decisions of the Tribunal in the case of Samsung India Electronics Pvt., Ltd., v. Commissioner of Customs (Noida) [2015 (326) ELT 161 (Tri-Del) ; Samsung India Electronics Pvt., Ltd., v. Commissioner of Customs (Air), [2016 (337) ELT 87 (Tri-Chennai)] . Further, it is submitted that the mere fact that the petitioner was classifying the product under CTH8529, prior to 05.01.2018, cannot be the reason for the insistence on classification of the product under CTH 8529. Further, it is submitted that appeal remedy available is not efficacious and if the petitioner is to challenge the reassessment, a sizeable amount equivalent to 7.5% of the disputed duty has to be paid, which is an onerous condition. The learned counsel made elaborate reference to the relevant chapter heading under which the product has to be classified and referred to the representation given by the petitioner dated 05.01.2018, regarding the classification issue. The learned counsel referred to the decision of this Court in the case of Senthil Raja Metal v. CTO 1990 (79) STC 38 , wherein it has been held that so long as the order of the Tribunal is not set aside, the Appellate Assistant Commissioner is bound to give effect to it and failure to do so on the ground that the Department has filed appeal will be really a contempt of the Tribunal's order. To the same effect, the decision in the case of Pushpanjali Silk Pvt. Ltd. v. Chief Commissioner of Customs, [2006 (203) ELT 21 (Madras) was also referred to. Referring to the decision of the Hon'ble Supreme Court in the case of Union of India v. Kamalakshi Finance Corporation Ltd., 1991 (55) ELT 433 , it is submitted that when there is a decision of the appellate authority, judicial discipline warrants that the lower authority follows the said decision. On the above ground, the learned counsel submitted that the impugned order calls for interference.

(3.) Mr.Rajnish Pathiyil, learned Senior Standing counsel appearing for the respondent referring to the counter affidavit filed in the Writ Petition and submitted that the impugned order is an appealable order that the petitioner was entitled to file an appeal before the Commissioner of Customs (Appeals) and that the remedy is effective and efficacious. It is further submitted that the decision in the case of Samsung India Electronics Pvt., Limited v. Commissioner of Customs (Noida) , (supra), has been appealed against and the Special Leave Petition is pending before the Hon'ble Supreme Court in Civil Appeal Nos.6518-6538 of 2016 and hence, the order has not attained finality.