TaxTMI 
TaxTMI 
2006 (10) TMI 22
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....ere was indigenous procurement. They cleared WLL CDMA Hand Held Terminals without payment of duty availing exemption Notification No. 6/2002 Central Excise dated 1-3-2002 as amended by Notification No. 6/2003 Central Excise dated 1-3-2003.The dispute is whether the impugned goods are entitled for the benefit of the exemption Notification under Sl. No. 264. The case of the department is that a Notification exempts only "Cellular Phones and Radio Trunking Terminals" and it has not covered WLL CDMA Hand Held Terminals. Relying on the consultation paper of the-Telecom Regulatory Authority of India, and certain other documents of M/s. BSNL, Calcutta and Bangalore Telephones, the Department came to the conclusion that the impugned items are not e....
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....ts and Accessories of the Mobile Hand Sets including Cellular Phones (Falling under Chapter Sub-Heading No. 8525.20 and 8527.90) respectively have been exempted from Excise Duty (Budget Instructions of 2003-04). (ii) An examination of the "instrument" would show that they are : • Hand sets working on Cellular technology. • Hand sets are Mobile and can be easily carried by any person, in his pocket, wherever he goes. • Though they work on CDMA Technology they are "mobile" and work in an area in which the infrastructure is provided by the Service Providers viz., Reliance, TATA INDICOM and BSNL, etc. • These Hand Held Sets working on Cellular Technology (CDMA) have all the features of the cellular phones working on GSM T....
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....bservations of the Apex Court in Para 10 of the judgment is very relevant and reproduced here below. 10.We are of the view that the reasoning of the Bombay Bench of the Tribunal as well as that of the Andhra Pradesh High Court must be affirmed and the decision of the Delhi Tribunal set aside insofar as it relates to the eligibility of the LSP 340 to the benefit of the exemption notification. The Andhra Pradesh High Court was correct in coming to the conclusion that the Board had, in the impugned circular, pre-determined the issue of common parlance that was a matter of evidence and should have been left to the Department to establish before the adjudicating authorities. The Bombay Bench was also correct in its conclusion that the circula....
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....ifference. 6.2 The Commissioner in the impugned order has not properly examined the entitlement of the impugned goods to the benefit of the exemption Notification taking into account the various judicial decisions. The point at issue is whether the impugned goods viz., WLL CDMA Hand Held Terminals is entitled to the benefit of exemption Notification. The relevant entry in the exemption Notification reads as "Cellular Phones and Radio Trunking Terminals". The issue is whether the item is a cellular phone. There is no dispute that the handsets manufactured by the appellants work on cellular technology. They are also mobile phones, in the sense any person can carry them easily. These handsets which work on CDMA technology have all the featu....