2022 (2) TMI 967 - AT - Customs

Tribunal classifies imported antenna as 'parts' under CTH 85177090, grants appeal

The tribunal classified the imported antenna for the base station under CTH 85177090 as 'parts' rather than as machines/equipment for data transmission. ... Classification of imported goods - Antenna for base station imported by the appellant - whether classifiable as parts of base station under CTH 85177090 as claimed by the appellant or as machine/equipment for the reception, transmission and conversion of data under CTH 85176290 as claimed by the Revenue? - HELD THAT:- The very same issue in the appellant’s own case has been decided by this tribunal’s Mumbai Bench in COMMISSIONER OF CUSTOMS (IMPORT) MUMBAI VERSUS M/S RELIANCE JIO INFOCOM LTD [2019 (11) TMI 451 - CESTAT MUMBAI] where it was held that the correct classification of the Antenna for base station is under Sub-heading 85177090 as “parts”. Since, the main issue of classification has been addressed, the other ancillary/alternative submission/issues on the eligibility of various exemption notifications issued in support of the classification of the said goods, becomes more of academic, hence not analysed. The identical issue in the appellant’s own case has been decided by tribunal Mumbai Bench wherein it was held that the antenna imported by the appellant is correctly classifiable under customs 85177090 as parts. Following this tribunal, it is held that the impugned order is not sustainable. The appeal is allowed - decided in favor of appellant. Issues Involved:1. Classification of imported Antenna for base station under CTH 85177090 or CTH 85176290.2. Alleged violation of principles of natural justice.3. Impact of duty paid under protest on the finality of assessment.Detailed Analysis:1. Classification of Imported Antenna:The central issue was whether the imported antenna for the base station should be classified under CTH 85177090 as 'parts of base station' or under CTH 85176290 as 'machines/equipment for reception, transmission, and conversion of data.' The appellant argued that the antenna should be classified as parts under CTH 85177090, referencing a previous decision by the Mumbai Bench of the tribunal in a similar case (Commissioner of Custom (Import), Mumbai vs. Reliance Jio Infocomm Ltd). The tribunal agreed, noting that the antenna is a passive element that only transmits and receives signals when connected to the base station and does not function independently as a machine. The tribunal also referred to the opinion of a Government registered Chartered Engineer and the manufacturer’s letter, which confirmed that the antenna is a passive part. The tribunal concluded that the antenna should be classified under CTH 85177090 as 'parts.'2. Alleged Violation of Principles of Natural Justice:The revenue contended that the principles of natural justice were violated as the department was not given adequate opportunities to present their case. However, the tribunal found that the department was served with a copy of the appeal and did not file a written submission or request a hearing. The tribunal emphasized that the provision under the Customs Act mandates extending personal hearings to appellants and not necessarily to respondents. Therefore, the tribunal concluded that there was no violation of natural justice in this case.3. Impact of Duty Paid Under Protest:The revenue argued that since the duty was paid under protest, the assessment was not final, and thus, the appeal against the assessment order could not lie before the Commissioner (Appeals). The tribunal rejected this contention, stating that the payment of the disputed amount under protest does not make the assessment provisional or incomplete. The tribunal cited the principle laid down by the Hon’ble Bombay High Court, which considers an assessed Bill of Entry as an appealable order.Conclusion:The tribunal held that the imported antenna for the base station is correctly classifiable under CTH 85177090 as 'parts.' The tribunal found no merit in the revenue's arguments regarding the violation of natural justice and the impact of duty paid under protest. Consequently, the tribunal set aside the impugned order and allowed the appeal with consequential relief in accordance with the law.Order:The impugned order was set aside, and the appeal was allowed with consequential relief, if any, in accordance with the law. (Pronounced in the open Court on 18.02.2022)