2024-VIL-684-CESTAT-CHE-CU
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CUSTOMS CESTAT Cases

Customs - Import of IP Phones – Payment of duty on self-assessment basis - Appellant of the view that IP Phones were correctly classifiable under 85171810 and exempt from payment of Customs duty - refund for duty paid on self-assessment basis for import of IP Phones – Rejection of refund claim in the absence of re-assessment of original assessment made in the Bills of Entry – whether the appellants are entitled to refund claims in the absence of challenge to the orders of the assessments in terms of provisions of Section 17, 27 and 128 of the Customs Act, 1962 - HELD – the appellants have classified the IP phones under CTH 85176990 on self-assessment basis and duty was paid @ 10% upto 11.10.2018 and @ 20% from 12.10.2018 onwards under Notification No. 57/2017-Cus dated 30.06.2017. Subsequent to the self-assessment for the imports, when the appellant came to know that IP Phones were correctly classifiable under CTH 85171810 and so were exempted from payment of Customs Duty, the appellant filed the refund claim – the refund was rejected by the refund sanctioning authority in view of the Hon’ble Supreme Court’s judgment in the case of M/s. Priya Blue Industries as being not maintainable without first amending and re-assessment of the self-assessed Bills of Entry – the Hon’ble Supreme Court in the case of ITC Vs. Commissioner of Central Excise, Kolkata-IV has held that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case, any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act - since all these imports were self-assessed, without challenging the assessments made, refund claims filed could not be sanctioned – the Appeals filed by the appellant-assessee on classification of Ethernet Switches and for refund claims filed are allowed. Whereas, in respect of appeal filed by the assessee is rejected as the duties were not paid under protest - The Appeal filed by the Department is rejected on the issue of classification of IP Phones – Ordered accordingly - Classification of the imported IP Phones and Ethernet Switches – Whether the IP Phones are classifiable under CTH 85176990 as contended by the Department or classifiable under CTH 85171810 as claimed by the appellant - HELD - imported IP Phones merit classification under CTH 8517 1810 and eligible for exemption under Notification No. 57/2017-Cus - the issue of classification of IP Phones is decided in favour of the appellants - imported Ethernet Switches merit classification under CTH 8517 6290 and are eligible for exemption under Notification No. 24/2005 as amended by Notification No. 11/2014 dated 11.07.2014. The appellant has categorically stated that the imported Ethernet Switches are only Enterprise Ethernet Switches and not Carrier Ethernet Switches - the appellant’s classification of IP Phones under CTH 85171810 and Ethernet Switches under CTH 8517 6290 of the Customs Tariff Act is upheld subject to verification that these are not IP Phones with video imaging facility and also they are not Carrier Ethernet Switches.
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