Classification of Lithium Ion Cell for use in manufacture of LED Emergency Bulb/Light

In re H.Q. Lamps Manufacturing Co. Pvt Ltd (CAAR Delhi)

M/s H.Q. Lamps Manufacturing Co. Pvt Ltd Plot No. 459-B, Sector-53, Phase-3 Industrial Estate, Kundli, Sonipat, Haryana, a private limited company having IEC No.0515905305 and PAN-AADCH4915R, has filed an application dated 21.03.2022 before the Customs Authority for Advance Rulings, New Delhi (CAAR, New Delhi in short) seeking advance ruling under Section 28-H of the Customs Act, 1962. On scrutiny of the application, it was found to be in order as per CAAR Regulations, 2021 and the application was accordingly registered under serial No. 07/2022 dated 23.03.2022.

2. The applicant, vide the aforesaid application, has sought ruling by CAAR, New Delhi on the question of applicability of notification issued under sub section (1) of Section 25 of the Customs Act, 1962, having a bearing on the rate of duty. The basic objective of the application is to seek clarification on issue as to whether the goods sought to be imported namely “Lithium Ion Cell (Captive Consumption — For LED)” merits benefit under Sr. No. 471 of Exemption Notification No. 50/2017-Cus. dated 30.06.2017, as amended by Notification No. 02/2021-Cus. dated 01.02.2021 as part for use in manufacture of LED Emergency Bulb/ Light.

3. The applicant has submitted statement of facts and question of law with the said application, wherein the applicant has, inter alia, mentioned as under: –

3.1 Under the Customs Tariff, Sections and Schedules, there is no restriction or specific inclusion/ exclusion on the variety of LED Bulb/ Lights/ Fittings. Any light or bulb which has the technology of LED, i.e. Light Emitting Diode, shall be classified under the category of LED Bulb/ Light. Therefore, the emergency bulb which has the technology of LED shall be undoubtedly considered as LED Emergency Bulb.

3.2 The demand of LED Emergency Bulb has increased in the past few years especially in small cities and villages as it provides light backup for some time when the power is gone; and therefore, the Applicant has expanded its manufacturing towards LED Emergency Bulb/ Light in the past two years. As stated above the characteristic of the said bulb is that when there is supply of power/current, it will light up and when the power/current stops, it will still remain illuminated with the essential property of power backup for some hours. For the said purpose, the applicant installs one “Lithium Ion Cell” inside the LED Bulb, which gives it the essential characteristic of power backup. The said product is sold in the market as Emergency LED Bulb or Inverter LED Bulb, which provides the backup for 3-4 hours.

3.3 The “Lithium Ion Cell” is an essential part of the LED Emergency Bulb, which is designed in a manner to fit exclusively into the LED Emergency Bulb. “Part” is defined as an identifiable component of an article, machine, apparatus, equipment, appliance or specific good, which is integral to the design and essential to the function of the product in which it is used. As per the said definition the “Lithium Ion Cell” arc integral to the design of the LED Emergency Bulb and is essential to the function of the Bulb as LED Emergency Bulb. The “Lithium Ion Cell” is essential and exclusive part of the I El) iliergency Bulb: and therefore, shall he defined as “Part” in terms of Note 2(a) of Section XVI. The said Rule is extracted below:

“2. Subicct to Note I to this Section, Note I to Chapter 84 and to Note Ito Chapter 85, parts of MaChil7CS (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 854″) are to he classified according to the following rules :

(a) parts which are goods included in any of the headings of Chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings; “

3.4 For the purpose of classification, above rule enumerates that any part of a machine shall be classified under their respective Chapter Heading and adhering to the said Rule, the Applicant has defined the “Lithium Ion Cell” under Chapter 85 of the Customs Tariff and therefore, the “Lithium Ion Cell^– forms an exclusive and essential part of the LED Emergency Bulb.

3.5 For the manufacturing of LED Emergency Bulb, the applicant has been importing “Lithium Ion Cell^– for captive consumption as parts of LED Bulb/ Light and has been availing the benefit of Sr. No. 471 of Exemption Notification No. 50/2017-Cus. dated 30.06.2017, as amended by Notification No. 02/2021-Cus. dated 01.02.2021. The said product is declared under CTI-I 8507 6000 @ BCD 10% while fulfilling the condition for furnishing of Bond under the Customs (Import of Goods at Concessional Rate of Duty) Rules, 2017 (in short, IGCR Rules). The relevant portion of Notification is as under:

“Notification No. 50/2017-Cus. dated 30.06.2017: Exemption & Effective Basic and Additional Customs Duty for specified goods falling under Chapters 1 to 98:

As amended by Notification No. 02/2021-Cus. dated 01.02.2021:

(76) against S. Nos. 471, 472 in column (4), for the entry, the entry “ID%” shall he substituted,- “

3.6 The Applicant under the above Exemption Notification has imported some consignments, which were duly examined and cleared by respective proper officers. However, on a much later date, after import of several consignments, the department [Principal Commissioner of Customs (Preventive), New Delhi] has raised the issue that the Lithium Ion Cell should not be considered as part for manufacturing of LED Emergency Bulb; and thus, the benefit of Exemption notification shall not be provided to the Applicant. In this regard, Principal Commissioner of Customs (Preventive), New Delhi has also issued a letter dated 21.02.2022 seeking details of all the previous imports made by the Applicant since 2017.

3.7  As the Applicant is a manufacturer of all kinds of LED Bulb/ Lights including LED Emergency Bulb, there are several proposed imports of Lithium Ion Cell, which would take place in coming months. At that point of time, the question of interpretation will arise that whether the “Lithium Ion Cell” can be considered as part for use in manufacturing of LED Emergency Bulb because the department and the applicant have different interpretations and if the issue is not resolved, the applicant will suffer huge irreparable loss.

3.7 The applicant has approached this Authority at this stage because the cause of action has arisen now. After giving clearance to several consignments of the said goods, the department at this point has raised the issue that the “Lithium ion Cell” shall not be considered as an essential part for use in the manufacturing of LED Emergency Bulb; and therefore, this interpretation will affect applicant’s future consignments which are proposed to be imported. Thus, for the sake of clarification and administrative convenience, applicant has sought intervention of this Authority.

4. The applicant has enclosed a letter dated 21.02.2022 of the Office of Principal Commissioner of Customs (Preventive), New Customs House, New Delhi addressed to M/s. H.Q. Lamps Manufacturing Co. Ltd., wherein the department has sought some data in respect of the goods imported by M/s. H.Q. Lamps Manufacturing Co. Ltd. after availing exemption of Sr. No. 527, 471 and 472 of the Notification No. 50/2017-Cus. dated 30.06.2017. Accordingly, the status of the enquiry initiated by the Principal Commissioner of Customs (Preventive), New Delhi was sought from the applicant as well as from the concerned office. Comments on the application were also sought from the concerned Principal Commissioner/Commissioner of Customs, having jurisdiction over Air Cargo Complex (Import), New Delhi and ICD, Patparganj, Delhi.

5. The Principal Commissioner of Customs (Preventive). New Delhi sent their comments vide letter dated 26.04.2022, wherein it was mentioned inter alia that the Li-Ion Cell is not an essential part of LED bulb and it acts as an extra feature for LED Bulbs. Since the benefit of the S. No. 471 of the Notification No. 50/2017-Cus dated 30.06.2017 was granted on the parts for use in the manufacture of LED lights, therefore, being a non-essential part, benefit is not available on Lithium Ion Cell. Further, the exemption notifications are subject to strict interpretation, therefore, benefit of S.No.471 is available for manufacture of LED lights and not for LED emergency light. Therefore, an enquiry was initiated against the M/s H.Q. Lamps Manufacturing Co Ltd and documents were sought from them vide letters dated 07.02.2022 and 21.02.2022. The importer had submitted Bills of entries on which benefits of concessional rate has been availed. The matter was still under investigation.

6. In this regard, the applicant vide their letter dated 05.05.2022 subinitted that no enquiry or investigation was pending against the applicant before any officer of customs in respect of the clarification sought in the said application. It was stated that letters were issued to them for the purpose of classification and nothing else, and that the said averment can also be clarified from the EPC Monitoring Cell, office of the Pr. Commissioner of Customs (Preventive), New Delhi. The applicant also requested for personal hearing before taking any decision in the matter.

7. Subsequently, specific comments of the Principal Commissioner of Customs (Preventive), New Delhi, regarding the applicability of proviso (a) to Section 28-1(2) of Customs Act, 1962 with respect to the status of their investigation has been received vide letter dated 12.05.2022, wherein it has been contended that since the issue of the applicant is already pending with their office, the said application may be rejected.

8. The concerned Principal Commissioner of Customs, ACC (Import), New Delhi vide their letter dated 27.05.2021, inter alia, informed that as per the records available with their office, no application for advance ruling of the applicant was pending with any officer of Customs, other Appellate Tribunal or any Court as per proviso (a) to Section 28-I-(2) of the Customs Act, 1962. In a subsequent personal hearing held on 12.07.2022, ACC (Import) informed that they were not aware about the enquiry being conducted by office of the Pr. Commissioner of Customs (Preventive). On the specific question posed for advance ruling, it was stated that is clear that all parts for use in manufacture of LED lights/fixtures/lamps are eligible for the benefit of S.No.471 of 50/2017, subject to the condition No. 9 (if the importer follows the procedure set out in the Customs Rules (Import of Goods at Concessional rate of Duty) 2017. Therefore, since the product under consideration appears to be a part of the LED emergency bulb, it appears that the same is eligible for the benefit of S.No. 471 of Notification No. 50/2017-Cus. dated 30.06.2017, subject to fulfillment of the said condition No. 9.

9. Accordingly, personal hearing was scheduled on 17.05.2022, but was held on 20.06.2022 on the request of the applicant, wherein Ms. Vidushi Subham, the authorized representative of the applicant made her submissions on the matter. The Authority observed that in view of the facts of the case, this application must be considered in two stages, i.e. (i) admissibility of the application, keeping in view the submissions of Principal Commissioner of Customs (Preventive), New Delhi and scope and applicability of proviso (a) to Section 28 (I)-2 of Customs Act 1962; and thereafter if the application is admissible; (ii) discussion regarding the question posed for advance ruling on the basis of submissions made and comments received.

10. On the question of admissibility, it was noted that the applicant has declared Principal Commissioner of Customs, ACC (Import), New Delhi and Commissioner of Customs, Patparganj & Other ICDs including ICD Garhi Harsaru, as the concerned Principal Commissioner/Commissioner of Customs. However, the applicant has mentioned that a communication was received from the 0/o Principal Commissioner of Customs Preventive, New Delhi seeking documents for the scrutiny of exemption benefit being claimed by the applicant pertaining to the imports made since 2017. Noting that the said consignments were imported through ICD Garhi-Harsaru, falling under the jurisdiction of Commissioner of Customs, Patparganj & Other ICDs, comments have been initially sought from (i) Principal Commissioner of Customs, ACC(Import), New Delhi, and, (ii) Commissioner of Customs, ICD Patparganj and separately from the Principal Commissioner of Customs (Preventive), New Delhi.

10.1 No comments have been received from Commissioner of Customs, Patparganj & Other ICDs and it is understood from the submissions made by the applicant that no action has been initiated in respect of the earlier bills of entry cleared through ICD Garhi-Harsaru, which were assessed and cleared without recourse to the provisional assessment under section 18 of the Customs Act 1962. The concerned Principal Commissioner of Customs, ACC (Import), New Delhi has mentioned that as per the records available, no case is pending with any officer of Customs, other appellate tribunal or any court as per proviso (a) to Section 28-1 (2) of the Customs Act 1962. Therefore, the question regarding admissibility required a discussion in the context of enquiry initiated by the Principal Commissioner of Customs (Preventive), New Delhi. Since no one represented the said Principal Commissioner of Customs (Preventive), on the basis of the facts available on record and contentions made, the Authority acknowledged that an enquir> has been initiated by the Principal Commissioner of Customs (Preventive), New Delhi against the applicant on the questions posed for advance rulings. However, it was held that the said enquiry/investigation have not acquired the formal status in the nature of provisional assessment or pre-notice consultation or show cause notice envisaged under the Customs Act as to be considered as “already pending in the applicant’s case belbre any nicer of customs ..”.

10.2 Thereafter, the discussion was held on the merits of the question posed, with the Authority concurred with the contention of the applicant regarding their eligibility for availing benefit under the said notification. In the interest of brevity, the same would be discussed later in this ruling.                                                                                        .

10.3  Be that as it may. in the interest of principles of natural justice, the Authority directed the Secretariat to send a copy of minutes of this Personal Hearing to the Principal Commissioner of Customs (Preventive). New Delhi and the concerned Principal Commissioner of Customs, ACC (Import). New Delhi and Commissioner of Customs, Patparganj & Other ICDs (Garhi-Harsaru) for information and action as deemed appropriate.

11. In response to the Record of Personal Hearing, the Pr. Commissioner of Customs Preventive vide their letter dated 24.06.2022 and 29.06.2022, inter alia, submitted that the question raised in the application was already pending in the applicant’s case before their office; that the office of the Pr. Commissioner of Customs Preventive, New Delhi was made as the proper/jurisdictional officers for the purpose of overseeing the benefits under the IGCR Rules, 2017; and also requested for another opportunity for Personal Hearing in the matter before deciding the case. The requested was granted and second personal hearing was held on 12.07.2022.

11.1 In the personal hearing held on 12.07.2022, the authorized representative of the applicant reiterated her earlier submissions. The representative of the concerned Principal Commissioner of Customs, ACC (Imports), New Delhi concurred with the contention of the applicant. The representative of the Principal Commissioner of Customs (Preventive), New Delhi argued that the application merits rejection under Section 28-I (2) of the Act ibid, in view of the enquiry initiated by their office, who are vested with the powers of the proper officer under the IGCR Rules, 2017. On the merits of the case, it is their contention that Lithium Ion cell, not being essential part of LED lamps/bulb, are not eligible for the benefit of the said notification, argued on the basis of the principle that exemption notifications must be interpreted conservatively. The personal hearing concluded with the Authority expressing his concurrence with the contention of the applicant regarding eligibility for concessional rate of duty, which has also been accepted by the concerned Principal Commissioner of Customs, ACC (Import), New Delhi but not by the Principal Commissioner of Customs (Preventive), New Delhi.

12. Having completed the procedure laid down for deciding the admissibility of the advance ruling application and for answering the question posed for advance ruling, if the application is accepted, albeit concurrently, I proceed to first explain the reasons for admission of the application, refuting the contestations of the Principal Commissioner of Customs (Preventive), New Delhi. Thereafter, I will proceed to pronounce my ruling on the question posed under Section 28-H of the Customs Act.

13. Admissibility of the application in terms of proviso (a) to Section 28 (I)-2 of the Customs Act, 1962

13.1 I have gone through the contention of the Principal Commissioner of Customs (Preventive), New Delhi on the admissibility of the said application within the scope of proviso (a) of Section 28(I)-2 of the Customs Act, 1962. There is a need to determine as to the stage/circumstance(s) which would he covered within the ambit of the expression “where the question raised in the application is already pending in the applicant’s case before any officer of customs .. “.

13.2 In the instant case, the previous consignment of goods was imported through ICD Garhi-Harsaru, falling under the jurisdiction of Commissioner of Customs, Patparganj & Other ICDs, claiming benefit of Notification No. 50/2017-Cus. dated 30.06.2017, which was cleared finally by the jurisdictional officers, subject to compliance with provisions of IGCR Rules, 2017. Therefore, the question of eligibility of availing the benefits under the said notification is not pending before the assessing officer or the adjudicating authority. In terms of the said IGCR Rules, specific powers are vested with the officers of Principal Commissioner of Customs (Preventive), New Delhi. In exercise of the powers so vested, an enquiry was initiated against M/s H.Q. Lamps Manufacturing Co. Ltd. and documents were sought vide letters dated 07.02.2022 and 21.02.2022. Thereafter, summon were issued to the importer on 29.04.2022 and 10.05.2022. It was submitted that the matter was still under investigation at the time of advance ruling application being filed.

13.3 The subject matter of investigation by the officers of Principal Commissioner of Customs (Preventive), New Delhi is to check whether the importer has used the imported goods for intended purpose or not. In the instant case, it is the submission of the Principal Commissioner of Customs (Preventive) that the jurisdictional officer not being satisfied with the manner of the utilization of the goods, called for documents and enquiry was initiated against them. In this matter when the importer was asked to submit the documents vide their office letter dated 21.02.2022, he had sought time vide letter dated 11.03.2022 to submit the documents. Further the importer had not submitted the documents even after issuance of two letters and summons to tender the statement and submit documents; and meanwhile filed the application before the CAAR, New Delhi. Therefore, it was observed that the importer had filed this application only after an enquiry was initiated against him and documents were called. Explaining further, it has been stated that as the Export Promotion Circle is not a port officer, question of provisional assessment does not arise. Further, Show Cause Notice in any matter is to be issued after completion of the investigation only and similarly the pre-consultation letters also can be issued after completion of investigation. Under IGCR Rules 2017 demand can be raised under Section 28(1)/28(4) read with the Section 143 of the Customs Act, 1962 and as per Rule 8 of the IGCR Rules 2017, if the jurisdictional Deputy/ Assistant Commissioner of the Customs found that the goods were not utilized satisfactorily, then he can initiate recovery by invoking of Bond and Bank Guarantee submitted by the importer without issuing any Show Cause Notice. Therefore, in the case of IGCR, it is not appropriate to say that if Show Cause Notice or pre-consultation letter is not issued, it will not be considered as initiation of investigation.

13.4 Principal Commissioner of Customs (Preventive), New Delhi has submitted that the exemption notification is to be interpreted strictly. Emergency LED light is not a kind of LED light and every type of LED light can be converted into an emergency light by installing a battery/Cell with that LED light. In this case the benefit under serial No. 471 of the Notification No. 50/2017-Cus. dated 30.06.2017  as amended is available for the manufacturer of LED lights only. Therefore, the benefit cannot be extended to LED Emergency lights.

13.5 I have gone through the relevant provisions of IGCR Rules, 2017, particularly rule 7 thereof. I note that the rules are intended essentially to ensure utilization of the imported goods for prescribed purposes and prescribed manner. It is a moot point whether the said provisions cover the authority to revisit the scope of the exemption notification already determined by the jurisdictional port officer. Be that as it may, this Authority is not competent to examine the scope of the said rule 7. and merely notes that at the present juncture, the concerned jurisdictional port officer has allowed availment of exemption notification and the investigation initiated by the Principal Commissioner of Customs (Preventive), New Delhi has not resulted in issue of any show cause notice atleast as yet.

13.6 On the basis of the careful examination of the relevant provisions of the Customs Act, Rules and CAAR Regulations, 2021, I am on the considered view that an application may be considered “pending” before any officer of customs only if it is pending before an officer in formal manner before an officer who is competent to answer the said question in terms of specific powers vested with the officer under the Customs Act 1962. An illustrative list of such situations would include cases wherein a Show Cause Notice has been issued; bill of entry has been provisionally assessed under Section 18 of the Act ibid; the matter is pending before the Special Valuation Branch of the Customs Commissioner for the purpose of valuation of the goods in question; or the proper officer has held the pre-notice consultation with the applicant in terms of the proviso of subsection (a) of Section 28(1) of the Customs Act, 1962. Therefore, in cases, such as the extant case, wherein an officer of customs is engaged in an investigation that may result in formulation of a question that would be posed before another competent officer would not qualify as “pending before an officer”.

13.7 In view of the above, I reject the contention of the Principal Commissioner of Customs (Preventive), New Delhi and allow the application for advance ruling in terms of Section 28-I (2) of the Customs Act.

14. Eligible for taking benefit of Customs Notification No. 50/2017-Cus. dated 30.06.2017.

14.1 now take up the questions posed for advance ruling, noting that the jurisdictional Principal Commissioner of Customs, ACC (Import), New Delhi has supported the claim of the applicant, whereas the Principal Commissioner of Customs (Preventive), New Delhi is of the view that Li-ion cell is not essential to the functioning of LED light, the benefit should be denied drawing support from Civil Appeal No. 3327/2007 in the case of Commissioner of Customs (Import), Mumbai vs M/s. Dilip Kumar and Ors, wherein the Hon’ble Supreme Court of India held that “Exemption Notification should be interpreted strictly; and when there is ambiguity in exemption notification which is subject to strict interpretation, the benefits of such ambiguity not be claimed by the subject/ assesse and it must be interpret in the favour of Revenue”. Reference has also been cited to the Hon’ble Supreme Court decision in the Civil Appeal No. 7710-7714 of 2021 in the case of State of Gujarat vs. Arcelor Mittal Nippon Steel India Ltd. has held that “Tax Exemption Notification Must be construed strictly”.

14.2 I respectfull\ take note of the salutary views of the Hon’ble Supreme Court regarding strict interpretation of the exemption notification, being in the nature of delegated legislation. I also respectfully note that ambiguity in exemption notification should be interpreted strictly, even as it is obvious that the said judgement should not be relied upon by the executive to envision ambiguity where none exist.

14.3 Following the said principle, I find that the eligibility under the exemption notification, which covers “all parts for use in manufacture of LED lights or fixtures including LED lamps” can be decided by answering the following three questions, which I proceed to do sequentially.

14.4 The first question is whether a LED Emergency light is a LED light? The AR of the applicant has submitted that the LED emergency bulb is a value-added category of LED bulb, and as per common parlance and technology used in the device, the LED Emergency bulb is an LED bulb. I note that it is in the nature of commercial progress that value added goods are envisioned and supplied in the market. While it is possible to restrict the scope of any goods to exclude value added sub-category thereof under any statute, particularly taxation statute, in the absence of such explicit exclusion reference to any goods must include value added categories thereof. In the instant case, emergency lights are lights; and LED emergency lights are LED lights, since emergency lights are neither classified elsewhere nor specifically excluded from the scope of the notification entry.

14.5 The second question is whether Li-ion cell is essential to the functioning of LED Emergency light? The AR of the applicant has submitted that the product being sold by them in the market is LED Emergency Light, which is a LED Bulb with the Li-Ion Cell that provides backup for 3-4 hours. Without the Li-ion cell, the product is not an Emergency bulb as marketed and sold by the applicant. Therefore, Li-Ion Cell is an integral and essential part of the Emergency LED Bulbs. I accept the contention of the applicant that in the instant case Li-ion cell is sine qua non for emergency bulb; and therefore, hold that the contention of the Principal Commissioner of Customs (Preventive), New Delhi that Li-ion cell is “not an essential part of LED bulb and acts as an extra feature for LED bulb”, is without merit.

14.6 The third question is given that Li-ion cell is classifiable under a separate heading and can be used for various purposes, whether the Li-ion cell being imported by the applicant is specifically designed for the LED Emergency bulb being manufactured by the applicant? In this regard, the AR emphasized that the Li-Ion Cells are designed in a manner to fit exclusively into the LED Emergency Bulbs manufactured by the applicant. In this regard, a sample of the bulb and Li-lon cell was produced before me during the personal hearing, which prima facie, supported the claim of the applicant. In this regard, I note that the benefit of exemption notification has been made available subject to compliance with I OCR Rules, 2017, thereby putting in place a mechanism to verify and ensure use of i-ion cells only for I „ED Emergency bulb and taking care of the revenue’s concern that imported Li-ion cell could be (mis)used for purposes, other than as part for the LED Emergency bulb.

14.7 Therefore, it can be summarized that Emergency LED Light is fundamentally a type of LED light, albeit a value-added one. Further, Emergency LED light cannot be excluded from scope of entry referring to LED Light for want of anything specific anywhere in the law providing that LED Emergency Light is distinct from LED light. Further, Li-Ion cells are integral part of LED Emergency Light. when specifically designed for use therein.

15. In view of the above, having admitted the application dated 21.03.2022 for reasons mentioned in para 13 above, I rule as under:

15.1 The applicant is eligible for taking benefit of S. No. 471 of Customs Notification No. 50/2017-Cus. dated 30.06.2017., as amended on Li-Ion cells to be used in the manufacture of LED emergency light, subject compliance with the provisions of IGCR Rules, 2017.