O R D E R

1. This appeal is arising against the judgment and order passed by the Customs, Excise and Service Tax Appellate Tribunal, [IN THE SUPREME COURT OF INDIA], Mumbai in Customs Appeal No 85246 of 2021 dated 17.05.2021. By the order impugned, the CESTAT allowed the appeal and remanded the matter back to the Original Authority.

Relevant portion of the order impugned is as under:

“5. The impugned order has held that impugned goods, even if identifiable as separate articles, are non-functional except in tandem, with other equipment. This is not a tenable basis for classification as workability, is not a criteria' to be adopted in such Signature Not Verified Digitally signed by circumstances. The' General Rules for INDU MARWAH Date: 2025.03.29

15:24:30 IST Interpretation of the Import Tariff are Reason:

specific in setting out the manner in which classification dispute between an importer and

1 “CESTAT "proper officer” is to be played out. This has been further elaborated in judicial determination by the Hon'ble Supreme Court, in Hindustan Ferodo Ltd v. Collector of Central Excise (1997 (89) ELT 16 (SC)], thus "It is not in dispute before us as it cannot be, that onus of establishing that the said rings fell within Item No. 22-F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed."

and, in HPL Chemicals Ltd v. Commissioner of Central Excise, Chandigarh [2006 (197) ELT 324 (SC)], thus "28. This apart, classification of goods is a matter relating to chargeability and the burden of proof is squarely upon the Revenue. If the Department intends to classify the goods under a particular heading or sub-heading different from that claimed, by the assessee, the Department has to adduce proper evidence and discharge the burden of proof. In the present case the said burden has not been discharged at all by the Revenue…."

which places onus on the 'proper officer' to establish the correctness, of the proposed classification in accordance with General Rules for interpretation of the Import Tariff as the first step. The finding in the impugned order of the goods being separately identifiable should have been followed by determination of the corresponding description in the First Schedule, the Customs Tariff Act, 1975 instead of treating it as one article of a composite good. Overlooking this, the lower authorities have relied upon purported 'common parlance'

derived from purported consumer behaviour which is neither 'common parlance' nor derived from any acceptable study of the marketplace. 'Common parlance' is,'at best, a mechanism for resolving ambiguity of description that impedes fitment within the tariff lines in the First Schedule to the Customs Tariff Act,1975.It is not a substitute for determination of the appropriate tariff item which, however, does not appear to have weighed with the first appellate authority. As the exercise in classification has not been correctly carried out, we have no hesitation in holding that the impugned order is not consistent with law - as enacted and judicially determined. It would, therefore,- be appropriate for the matter to be remitted to the original authority, for a fresh decision in accordance with the stipulations above.

6. Appeal is, therefore, allowed by way of remand.”

2. Mr. A.R. Madhav Rao, learned Counsel appearing for the appellant relies on Circular No.13/2013-Cus dated 05.04.2013 and requests that the CESTAT while considering the matter on remand, must also take into account the applicability of the said Circular.

3. We direct that the CESTAT shall give opportunity to all the parties including the learned counsel representing Customs, while inter alia considering the applicability of the circular and pass appropriate orders.

4. We make it clear that we have not expressed any opinion on the merits of the case,