AI Drafter 
TaxTMI 
TaxTMI 
2022 (10) TMI 747
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.... Entry. 13. The Appeal filed by M/s. Bharti Airtel rejected accordingly." 2.1 M/s Bharti Airtel Ltd (Appellant) filed 51 Bills of Entry as detailed in table 1 below, for the clearance of the antenna for base station claiming classification under CTH 85177090. These Bills of Entry were reassessed without any speaking order as per Section 17(5) of the Custom Act, 1962 and the classification as claimed by the respondents was modified to 85176290. Table 1: Details of Bills of Entry filed Description of Goods Antenna for Base Station S No Bill of entry No and date Classification of Goods Claimed Determined 1 2002411/04.02.2020 85177090 85176290 2 2002413/04.02.2020 85177090 85176290 3 2002414/04.02.2020 85177090 85176290 4 2002427/04.02.2020 85177090 85176290 5 2002412/04.02.2020 85177090 85176290 6 2002415/04.02.2020 85177090 85176290 7 2002311/04.02.2020 85177090 85176290 8 2002136/05.02.2020 85177090 85176290 9 2002436/05.02.2020 85177090 85176290 10 2002434/05.02.2020 85177090 85176290 11 2002437/05.0....
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....5/2020-2021/ AC/NS- Gen/CAC/JNCH dated 12.05.2020, reassessing the imported goods as stated above the assessment made on the Bills of Entry by the proper officer were challenged by the appellant before the Commissioner (Appeals) who by the impugned order, referred in para 1 above, rejected the appeal and denied the classification as claimed by the importers while filing the Bill of Entries. 2.3 Aggrieved appellant has filed this appeal. 3.1 We have heard Shri J C Patel, Advocate for the appellant and Shri Ramesh Kumar, Assistant Commissioner, Authorized Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submitted that: • The Issue involved in this appeal is whether "Antenna" for Base Station is classifiable as "Part" under CTSH 8517 7090 or as a "Machine for reception, conversion and transmission or regeneration of voice, images or other data" under CTSH 851762 90. The said issue stands decided in the Respondent's favour by the following decisions of this Hon'ble Tribunal in the Respondent's own case, in which it is held that "Antenna" for Base Station are classifiable as "Part" under CTSH 8....
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....llular network) stood covered under Heading 8517 61 00 and Antenna for such Base Stations, being parts stood covered under Heading 8517 70 which specifically mentions "Parts". - • The following two Notifications of the Central Government clearly recognize and consider Antenna as Parts classifiable under CTH 8517 7090 and not as Machines or Apparatus of CTH 8517 62 90: • Sr. No.vi of Notification No.18/2007-Cus dated 22-2- 2007 read with Sr. No.30 of Notification No.69/2004-Cus dated 9-7-2004, issued by the Government of India, as per which " Aerials or antennae of a kind used with apparatus for radio telephony", fall under tariff item 8517 70 90 which covers "Parts" and • Sr. No.31 of Notification No. 11/2018 dated 02.02.2018, which covers, 'Aerials or antennae of a kind used with apparatus for radiotelephony and radiotelegraphy falling under Tariff item 8517 7090'. Decision of the HS Committee (World Customs Organization) 62nd session supports the Respondent's case: • As per the decision of the HS Committee (World Customs Organization) 62nd session, antenna for base station are classifiable as parts under heading 8517....
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....sification of telecommunication antennas under CTH 85177090. • Admittedly, Revenue is bound by the CBIC instruction No. 01/2018 - Cus dated 15 Jan 2018 which clarifies that telecommunication antenna being a complete device with a specified function i.e. conversion of electrical signals into electromagnetic waves and vice versa in a wireless communication system, is appropriately covered by the single dash heading "-other apparatus for transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network)" of heading 8517 as an "transmitting and receiving apparatus for radio-telephony." • As per the said instruction the telecommunication antennas, at double dash level, squarely covered by the heading "851762- machines for reception, conversion and transmission or regeneration of voice, image or other data, including switching and routing apparatus." • Hon'ble Supreme Court in case of Collector of Central Excise vs Dhiren Chemical Industries wherein it has been held that; • "1. The issue involved in these appeals is covered by the deci....
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....Section Note According to rule (e), parts which are goods included in any of the headings of Chapter 84 or 85 are in all cases to be classified in their respective headings. In other words, the parts which in themselves constitute an article covered by a heading of this section, in all cases are to be classified in their own appropriate heading even if specially designed to work as part of a specific machine. Therefore, the goods under consideration would fall under CTH 8517 70 90 as a part of the machine/apparatus classifiable under CTH 8517 only in the situation when it is not covered by any other heading of the section. iv) However, as discussed above, the telecommunication antenna being a complete device with a specified function ie, conversion of electrical signals into electromagnetic waves and vice-versa in a wireless communication system, is appropriately covered by heading "Other apparatus for transmission or reception of voice, images on other data including apparatus for communication in a wired or wireless network (such as a local or wide area network):" of heading 8517 as an 'transmitting and receiving apparatus for radio-telephony'. Further, at double dash le....
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....7. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular provision of statute says and it is not for the executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law." 11. Further, the appellant relied upon the decision of the Hon'ble CESTAT in the case of CC v Reliance Jioinfocom Ltd.- 2019(369)ELT 1713 vide Order A/87015-87016 of 2019 dated 06.11.2019 where Hon'ble CESTAT held that Antenna are not Machines but only parts of Machines and therefore are classifiable under Taiff Heading ....
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....ith the circular would mean that the valuable right of challenge would be denied to him and there would be no scope for adjudication by the High Court or the Supreme Court. That would be against very concept of majesty of law declared by this Court and the binding effect in terms of Article 141 of the Constitution." 4.5 Learned Authorized representative submitted that revenue has filed the Civil Appeal Diary No 14797/2020 against the order of CESTAT before the Hon'ble Apex Court. The said Civil Appeal has been listed before the Hon'ble Apex Court on 18.12.2020, 05.08.2021, 17.09.2021, 11.11.2021 and 28.03.2022. The order passed by the bench on the last day is reproduced below: "CIVIL APPEAL Diary No(s). 14979/2020 (Arising out of impugned final judgment and order dated 06-11- 2019 in CA No. 85882/2018 06-11-2019 in CA No. 85883/2018 passed by the Custom Excise Service Tax Appellate Tribunal, West Zonal Bench At Mumbai) COMMISSIONER OF CUSTOMS (IMPORT) Petitioner(s) VERSUS M/S RELIANCE JIO INFOCOM LTD. Respondent(s) (IA No.82614/2020-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.82613/2020-STAY APPLICATION....
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....e telephone sets with cordless handsets 8517.12 - - Telephones for cellular networks or for other wireless networks 8517.18 --Other - Other apparatus for transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network): 8517.61 - - Base stations 8517.62 - - Machines for the reception, conversion and transmission or regeneration of voice, images or other data, including switching and routing apparatus 8517.69 - - Other 8517.70 - Parts This heading covers apparatus for the transmission or reception of speech or other sounds, images or other data between two points by variation of an electric current or optical wave flowing in a wired network or by electro-magnetic waves in a wireless network. The signal may be analogue or digital. The networks, which may be interconnected, include telephony, telegraphy, radio-telephony, radiotelegraphy, local and wide area networks. ..... (E) Telephonic or Telegraphic Switching Apparatus. (1) Automatic switchboards and exchanges. ....
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....nd combinations thereof. They may be configured, for example, as public switched telephone networks, Local Area Networks (LAN), Metropolitan Area Networks (MAN) and Wide Area Networks (WAN), whether proprietary or open architecture. This group includes :- (1) Network interface cards (e.g., Ethernet interface cards). (2) Modems (combined modulators-demodulators). (3) Routers, bridges, hubs, repeaters and channel to channel adaptors. (4) Multiplexers and related line equipment (e.g., transmitters, receivers or electro-optical converters). (5) Codecs (data compressors/decompressors) which have the capability of transmission and reception of digital information. (6) Pulse to tone converters which convert pulse dialed signals to tone signals. PARTS Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), parts of the apparatus, of this heading are also classified here." 12. Corresponding Customs Tariff entries for 8517 are read as under " - Other apparatus for transmission or recepti....
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....-), for "parts". The 'base station' is classified under the second category under CSH 8517 61 00, to which neither side disputes. 42. Revenue, referring to the definition of 'machine' prescribed under Note 5 of Section XVI classified the 'antenna' for base station under second category, as 'machines' for reception, conversion and transmission or regeneration of voice, images or other data including switching and routing apparatus. The Revenue's argument is based on the clarification issued by the Board on 1-1-2018 that antenna is an essential device of a wireless communication system; the information can travel only in the electromagnetic wave form. The antenna radiates the information in the form of electromagnetic wave in an efficient and desired manner to the base station, where the information is picked up by the receiving antenna and passed on to the receiver via transmission line. The signal is demodulated and the original message is then recovered at the receiver. Thus, the wireless communication gets established. It is the contention of the department that since the antenna can generate electromagnetic wave from current and....
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....machine' has to be understood in the context of Heading 8517. This is clear when we read the scope of Heading 8517 as explained under HSN which reads as follows :- "This heading covers apparatus for the transmission or reception of speech or other sounds, images or other data between two points by variation of an electric current or optical wave flowing in a wired network or by electro-magnetic waves in a wireless network. The signal may be analogue or digital. The networks, which may be interconnected, include telephony, telegraphy, radio-telephony, radio-telegraphy, local and wide area networks." 45. In the present case, the manufacturer of antenna as well as the chartered engineer's certificate, in clear terms clarified that the antenna in question transmits and receives only signals and not performing any other function like conversion or regeneration of voice, images or other data signals and switching/routing of signals. Therefore, the antenna stand alone cannot be considered as a 'machine', attracting classification under Heading 8517.62. Consequently, the observation of the department in the circular dated 15-1-2018 that the Antenna i....
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....sified in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate or, failing that, in heading 8487 or 8548." 47. A simple analysis of Clause (a) of the above Note reveals that parts which are 'goods' required to be classified in the respective headings; in the present case, 'Antenna' being a part of the BTS, hence applying the said Rule, classifiable under Chapter Heading 8517. Revenue's interpretation of the said clause (a) in the present case is that in the event if the goods are not falling under any of the sub-heading of Heading 8517, then only it will be classifiable as 'parts', is incorrect. Clause (b) of the said Note 2 indicates that "other parts", by implication which are not goods, if suitable for use solely or principally with a particular kind of machine of the same heading are to be classified with the machines of that kind or the headings mentioned under the said clause (b) as appropriate. Further, it is mentioned that parts which are equally suitable for use principally with the goods of Heading 85.17 and Headings of 8517 and 8525 to 8528 are to be classified as Headings of 8517. Therefore, antenna sin....