TaxTMI 
TaxTMI 
2016 (5) TMI 989
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.... parts and accessories of CDMA FWT model WF 836F consisting of main PCB, G3 fax PCD, Plastic casings top etc. and claimed exemption of the Additional Duty of Customs thereon in terms of Notification No.21/2005-Cus. dt. 1.3.2005. But such benefit was not available to the respondent. Revenue agitates the matter before Tribunal praying to hold that the goods manufactured by the respondent was neither mobile handsets nor cellular phones since Fixed Wireless Terminal (FWT) is neither mobile handsets nor cellular phone. Accordingly, respondent is not entitled to the benefit of the Notification. Learned Commissioner (Appeals) misconceived the entire object of the notification and decided in favour of the respondent. 2.1. It is further submission of Revenue that respondent manufactured Fixed Wireless Terminal (FWT) without making use of imported material for manufacture of mobile handsets or cellular phones. Therefore, exemption benefit claimed in terms of the notification above is deniable being contrary to law. He relies on para-9 of the OIO to support Revenues contention that respondent should have carried out manufacture of mobile phones or cellular phones making use of the goods....
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....ied] 2.3. Considering the characteristics of the Fixed Wireless Terminal (FWT) manufactured by the respondent, ld. Adjudicating Authority examined the goods manufactured by the respondent in the light of the judgement of the Apex Court in the case of TATA Teleservices Ltd. Vs CC - 2006 (194) ELT 11 (SC). But in paras 27 to 29 at pages 18 to 20 of the order he was of the opinion that the goods manufactured were only Fixed Wireless Terminal (FWT) but neither cellular phones nor mobile phones. The material facts and technicalities recorded by the ld. Adjudicating Authority has been ignored by learned Commissioner (Appeals). He relied on the Supreme Court judgement in the above case and allowed the appeal of respondent holding that using the parts, components and accessories imported, respondent manufactured FWT which is a mobile phone under CDMA technology. 2.4. Ld.D.R categorically says that end product of the respondent should be either mobile phone or cellular phone to grant notification benefit. Such predominant condition of the notification has not been fulfilled. Placing Notification No.26/2003-Cus.dt. 1.3.2003, he explained that earlier to this notification, Notification ....
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....eading 85.17 to support its case stating that the goods manufactured by the respondent falls therein without granting any exemption to the goods imported. Ld. D.R supported the order of adjudicating authority going through the decision of the Chief Commissioners Conference as has been recorded in para-21 of the adjudication order. He further relied on the decision of Bangalore Bench of the Tribunal in the case of VuppalamrithaMagnetic Components Ltd. Vs CCE& ST Hyderabad as reported in 2013-TIOL-1011-CESTAT-BANG to submit that although it is a stay order but it still holds field in favour of the Revenue. He also relied on the decision of Chennai Bench of the Tribunal in the case of ACD Communication Pvt. Ltd. reported in 2011-TIOL-236-CESTAT-MAD = 2011 (263) ELT 744 (Tri.-Chennai) to submit that the grant of Exemption Notification No.21/2005-Cus. dt. 1.3.2005 is not available against the basic plea of manufacturing mobile handsets or cellular phones by respondent which is not its case. 3. On behalf of the respondent, learned advocate submits that the grant of the Notification No.21/2005-Cus. dt. 1.3.2005 is to exempt parts, components and accessories of mobile handsets/cellular....
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.... 3.3 Relying on Circular No.15/2006-Cus. Dt. 20.4.2006 at page 118 of the paper book respondent submitted that Board's intention being very clear on the basis of Apex court decision in the case reported in 2006 (194) ELT 11 (SC), the Bombay Bench of the Tribunal in the case of Teracom Private Ltd. Vs CC Goa - 2008 (222) ELT 58 (Tri.-Mumbai) has held that the like goods manufactured by the respondent is not disentitled to the benefit of exemption notification. 3.4 Drawing attention to the Revenues submission which was relying on the decision in the case of ACD Communication Pvt. Ltd. & Others Vs CC Chennai (supra), respondent explained that this decision rather supports the case of the respondent on the ground that FWT is nothing but mobile handsets. Relying on page 102 of the paper book which deals with Notification No23/2010-Cus.Dt. 27.2.2010, it was submitted by respondent that Government has considered to encourage manufacture of FWT and granted benefit of exemption which cannot be denied to it. 4. We have considered the submissions and arguments put forth by the D.R. as well as the advocate for respondent at length. Before we appreciate the technical aspects of the issu....
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....led into model "FWT WF 836F". The entire dispute centers around the question whether this equipment described as "Fixed Wireless Terminal" can be considered as a "mobile handset including cellular phone". The original authority decided, after considering the salient features of the FWT, that they cannot fall within the description of "mobile handsets including cellular phones" and consequently denied the benefit of Notification No.21/2005-Cus. dt. 1.3.2005. At the stage of the first appeal, the Commissioner (Appeals) reversed the decision and the matter is before us by way of Revenues appeal. 6. Revenue submitted a copy of service manual of the FWT and argued that the physical appearance of the goods does not resemble cellular phones or handsets and also lacks in several other important features. However, the respondent made out its case explaining that the very same dispute has arisen time and again in the context of direct import of FWTs in the context of eligibility of exemption under the erstwhile Customs Notification No.21/2002-Cus., as amended by Notification No.26/2003-Cus. dt. 1.3.2003. It was also submitted that the Revenue initially held the view that such FWTs cannot....