TaxTMI 
TaxTMI 
2022 (6) TMI 1403
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....rt Creative Touch 5-series Interactive Flat Panel (IFP) (hereinafter referred to as the 'subject item') from China. The subject goods are an all-in-one (AIO) computer systems, functioning like a large size tablet computer, and has an inbuilt Mother Board, MT9950 (Quad Core A73) Micro Processor (CPU), Quad-core Mali G52 Graphics Card, 4GB RAM, and 32 GB SSD Storage. It also has an embedded Android system pre-loaded with Android, .9.0 (Oreo) Android Operating System (OS). The applicant is of the view that the subject goods are classifiable under CTH 8471 4190. They intend to import the said goods from China through the entry points of seaports/airport at Chennai, Nhava-Sheva, Mumbai, New Delhi and Kolkata. Accordingly, comments from the following jurisdictional Principal Commissioners/Commissioners of Customs were invited. (i). Commissioner of Customs, Sea Port, Chennai 600 001 (ii). Commissioner of Customs, Air Port, Chennai 600 027 (iii). Commissioner of Customs, Nhava Sheva, Maharashtra 400 707 (iv). Commissioner of Customs, Air Port, Mumbai 400 059 (v). Commissioner of Customs, Air Port, Delhi 100 037 (vi). Commissioner of Customs, Sea Port, Kolkata. 700 ....
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....ere reassessed to CTH 85285900. Accordingly, speaking order no. 308/2021- 22/DC/Gr.-V/NS-VaNCH, dated 07.06.2021 was issued to the importer. The importer filed an appeal against the said speaking order and CESTAT vide order No. A/87407/2021, dated 03.12.2021 has set aside the speaking order and the appeal of M/s. Cloudwalker Streaming Technologies was allowed. Page 2 of 8 However, it is informed that the department has decided to file a SLP before the Hon'ble Supreme Court against the CESTAT order No. A/87407/2021, dated 03.12.2021. 5. The applicant, through their advocates, have submitted their rejoinder to the department's comments. It has been submitted that the main crux of the department's objection is that the goods, viz. interactive intelligent panel does not have the functionality of an automatic data processing machine as defined in chapter note 5(a) of chapter 84 of the customs tariff. It is further contented that in terms of note 5(e) to chapter 84 of the customs tariff, instruments or apparatus incorporating or working in conjunction with an automatic data processing machine and performing a specific function other than data processing are to be classified ....
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.... IFPs therefore, qualify as ADP machine classifiable under CTH 84 71. They also have an in-built processing unit, an input unit and an output or may have separate processing, input and output unit interconnected with each other and so the requirements set out in the HSN Explanatory Notes to CTH 8471 also stand satisfied (vi). The IFPs are capable of working as ADP machine on a standalone basis and can also be used in conjunction with other ADP machines, but this would not mean that they would cease to be ADP machines in their own right, capable of working on a standalone basis. The large size display (65inches, 75 inches and 86 inches) is only a feature / specification of the product and this cannot be construed to be its function, much less its principal function. The department, therefore, committed an error in contending that the large size of display would mean that the IFPs are meant for display purpose to a large gathering and, therefore, in terms of Note 5(E) of Chapter Note 84, they would merit classification as per the specific use. (vii). In terms of chapter notes contained in Chapter 85 and the HSN Explanatory Notes to CTH 8528, it is more than apparent that CTH 85....
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....e authority shall not allow the application where the question raised in the application is - "(a) already pending in the applicant's case before any officer of customs, the Appellate Tribunal or any Court" As such it appears that there is no case pending in the applicant's case before any officer of customs/tribunal/court. Therefore, I find no encumbrance in taking up the present application for rendering an advance ruling. 8. From the submission of applicant as well as the information available from open source, the subject item, namely Creative Touch 5-Series Interactive Flat Panel (IFP), is described as an ADP machine consisting of an integrated system with Central Processing Unit, Mother Board, Graphic Card, Memory (RAM + Storage), graphic processing unit, touch screen as virtual key board as an input device and video display unit as an output device, all in one place, within the display's body. The subject item typically come loaded like a tablet computer system, with a mobile operating system and touch screen display processing circuitry, and can be used with either of the operating systems, i.e., mobile operating system. like Android 9.0 (Oreo) and/or deskt....
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.... and an input and output unit, whether or not combined. The digital data processing machines of this heading must be capable of fulfilling simultaneously the conditions laid down in Note 6 (A) (a) to this Chapter. That is to say, they must be capable of: (1) Storing the processing program or programs and at least the data immediately necessary for the execution of the program; (2) Being freely programmed in accordance with the requirements of the user; (3) Performing arithmetical computations specified by the user; and (4) Executing, without human intervention, a processing program which requires them to modify their execution, by logical decision during the processing run. Thus, machines which operate only on fixed programs, i.e., programs which cannot be modified by the user, are excluded even though the user may be able to choose between a number of such fixed programs. The digital data processing machines have storage capability and also stored programs which can be changed from job to job. Digital machines process data in coded form. A code consists of a finite set of characters (binary code, standard six-bit ISO code, etc.). The data input is usually automatic, ....
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....irly comes out that the following conditions of Note 6 (A) to Chapter 84 of Customs Tariff Act, 1975 are fulfilled: - (i) storing the processing programme or programmes and at least the data immediately necessary for the execution of the programme; (ii) being freely programmed in accordance with the requirements of the user; (iii) performing arithmetical computations specified by the user; and (iv) executing, without human intervention, a processing programme which requires them to modify their execution, by logical decision during the processing run. Open-source information as well as the submissions of the applicant portrays the subject item as an A10 which is a fully functional ADP machine that operates without restrictions. The AIO is equipped with hardware and software that allow it to perform, without artificial constraints, general computing tasks, where users are free to add or remove applications of their choosing. In a similar matter, the principal bench of CESTAT, New Delhi, in FINAL ORDER NO. 50076-50077/2022 in CUSTOMS APPEAL NO. 50708 OF 2021 with CUSTOMS APPEAL NO. 50709 OF 2021 appeal filed by M/s. Ingram Micro India have held that goods would merit cla....