Page 290 - ELT_15th July 2020_Vol 373_Part 2

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order dated 28 January 2019 all the charges as leveled in the show cause notice
have been confirmed by the Adjudicating Authority. The appellant are before us
against the impugned order-in-original.
5. The Learned Advocate appearing for the appellant has submitted
that the appellant have imported the goods vide finally assessed bills of entry
through ICD, TKD, Tughlakabad at ICD Airport, New Delhi and ICD, Patpar-
ganj, New Delhi at lower rate of the Basic Customs Duty at 10% in terms of Noti-
fication No. 21/2002-Cus., dated 1-2-2002 under Sl. No. 345 and thereafter under
Notification No. 12/2012-Cus., dated 17-3-2012 by declaring the same as CKD
parts assembly (part of electrically operated two wheeler for captive use) classi-
fying the same under Customs Tariff Heading 8714 99 90 primarily. The lithium
Ion battery imported separately were classified under Chapter Heading 8507 60
00 and appropriate rate of customs duty under the said heading has been paid at
the time of import. The Learned Advocate has contended that the Adjudicating
Authority has erred in classifying the product under CTH 8711 90 91 as this
heading is applicable only for electrically operated motorcycles (including mo-
peds) and cycle fitted with auxiliary motors with or without cars. The Learned
Advocate has tried to impress that Segway in common parlance is not under-
stood as motorcycle or moped or cycle fitted within an auxiliary motor. It has
further been added by the Learned Advocate that the Adjudicating Authority
has wrongly taken a view that wheel power fitted for movement of a person are
akin to the goods covered under CTH 8711. It has been the contention of the
Learned Advocate that Segway being battery operated vehicle cannot be classi-
fied to be a motor vehicle as per Motor Vehicles Act, 1988 as its maximum speed
is 12.5 miles per hour equal to 20 km. and, therefore, Segway cannot be equated
with the electrically operated motorcycle or moped or cycle fitted with the auxil-
iary the motor. It has further been argued that though the appellant had classi-
fied their product under a particular customs tariff heading and if the Depart-
ment wants to change the classification of the product to some other tariff head-
ing the burden of proof for classifying the product in a different tariff heading
has to be discharged by the Department. The Learned Advocate has taken reli-
ance of following cases in support of his argument on this count : (a) Commission-
er of Central Excise, Nagpur v. Vicco Laboratories - 2005 (179) E.L.T. 17 (S.C.); (b)
Raptakos Brett & Co. Ltd. v. Commissioner of Central Excise, Raigad - 2014 (307)
E.L.T. 565 (Tri. - Mumbai).
6. It has further been submitted that the Commissioner has wrongly
denied them the benefit under Notification No. 12/2012- Cus., dated 17-3-2012 at
Sl. No. 443(1)(a) saying that the gear box imported by the appellant were in pre-
assembled condition at the time of the import and, therefore, the benefit of above
said notification is not available to the appellant. The Learned Advocate submit-
ted that the basic evidence for denying the benefit of this notification to the ap-
pellant is Chartered Engineer certificate and Chartered Engineer Shri Vinod
Soorma has not been made available for cross-examination to the appellant at the
time of adjudication. The report given by him cannot therefore be made basis for
arriving at the conclusion that the gear box imported by them were at the pre-
assembled form.
7. Regarding opinion of Shri Devesh Pareekh, it is submitted that dur-
ing cross-examination, in reply to question 7, he stated that the parts shown to
him were not motorcycle parts and were parts of Segway. The opinion of Shri
Pareekh doesn’t support the Department’s case that others electrically operated
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