TaxTMI 
TaxTMI 
2023 (7) TMI 1297
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....35629 dated 01.02.2018, 6427856 dated 18.05.2018, 6460162 dated 21.05.2018, 6459522 dated 21.05.2018, 6427836 dated 18.05.2018, 6459748 dated 21.05.2018, 6480465 dated 22.05.2018 and 6480635 dated 09.02.2018 under tariff item 85177090 appeal numbers 1577/2018 and 1578/2018 filed by M/s Rosenberger Electronic Co (I) Pvt. Ltd. and appeal number 835/2018 filed by M/s Reliance Jio Infocomm Ltd are allowed accordingly." 1.2 Though Commissioner (Appeals) has by the impugned order disposed of three appeals, two filed by M/s Rosenberger Electronic Co (I) Pvt. Ltd. (now known as M/s. Prose Technologies India Pvt. Ltd.) and one filed by M/s Reliance Jio Infocomm Ltd, revenue has filed only one appeal against the impugned order. 2.1 Respondents filed the Bill of entries as detailed in table 1 below, for the clearance of the goods as indicated. These Bills of Entry were reassessed and speaking order as per Section 17 (5) of the Custom Act, 1962 was issued modifying the classification acclaimed by the respondents. Respondent Bill of Entry No and date Description of Goods Classification under CTH Claimed Determined 1 5035476 dtd 01.02.2018, 5035629 dtd 1. 2.2018 Passive Anten....
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.... radiates, or transfers the electromagnetic energy from the BTS/NodeB/eNodeB to the Handset over free space. From the above it is apparent that the Antenna is primarily a device for transmitting and receiving radio waves, It radiates or transfers the electromagnetic energy from the BTS/NodeB/eNodeB to the Handset over free space and that the presence of the antenna is essential for the handset to connect to the BTS/NodeB/eNodeB and thereby the core network. It is reiterated that in terms of the HSN - the most common types of Base Stations are those for cellular networks, which receive and transmit radio waves to and from cellular telephones or to other wired or wireless networks and each base station covers a geographical area (a cell). The technical opinion of Prof. Girish Kumar, Electrical Engineering Department IIT Bombay, produced by the original appellants before the Commissioner (Appeals) has also mentioned that Base Station Antennas are integral part of 'wireless telecommunication sites' containing the BTS and that at the cell site, RF Cable/ Jumper is used to transfer the electromagnetic energy from the BTS/ NodeB / eNodeB to the antenna. Note 2 to section XVI....
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....d fall under the single dash entry of heading 8517 pertaining to '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)' During the Appellate Proceedings it had been submitted on behalf of the importers that the imported antennae have universal application, are not specific to a technology or generation. It has also been submitted that the said antenna can be used for various cellular networks adopting standards such as 2G/GSM, 3G, and 4G/ LTE. Further at the Wireless Telecommunication Site or Base Station, RF Cable/Jumper is used to transfer the electromagnetic energy from the BTS/ NodeB/ eNodeB to these antennas. From the above it is apparent that the imported antennas are an individual entity/ apparatus which would be connected to BTS of various standards such as 2G / GSM, 3G, and 4G / LTE. Since the presence of the antenna is essential for the handset to connect to the BTS/ NodeB/ eNodeB and thereby the core network, it is apparent that the antenna is clearly classifiable as an 'apparatus which allows for the connection to a wired o....
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....d the said antenna under tariff item 8517 70 90. In this regard it is submitted that the various Notifications cited during the proceedings before the Commissioner (Appeals) relate to antennas/ aerials of radiotelephony and radiotelegraphy. Whereas, the imported antennas are Antenna's for Base stations of cellular communication networks and not the antennas/ aerials of radiotelephony and radiotelegraphy. The imported antenna's, unlike the antennas/ aerials of radiotelephony and radiotelegraphy, are clearly apparatus which allows for the connection to a wired or wireless communication network and are appropriately classifiable under the single dash entry pertaining to apparatus for communication in a wired or wireless network (such as a local or wide area network). The antennas / aerials of radiotelephony and radiotelegraphy not being associated with communication networks such as LAN/WAN are not classifiable as apparatus for communication in a wired or wireless network (such as a local or wide area network). As such the Notifications cited before the Commissioner (Appeals) are of no consequence to the imported antennas, It has also been held by Commissioner (Appeals) that....
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....ding 8517.70 The term "aerial' is an old usage for the relatively new term 'antenna'. Reference is made to IEEE Standard Definitions of Terms for Antennas, published on June 2,983 and book titled 'Antennae Theory Analysis and Design, 3rd Edition, Publication by John Wiley & Sons, INC' which refers to aerials and antennae interchangeably and are part. Even otherwise, Notification No.25/05-Cus., dated 1.3.2005 (SI. No.15) existing as on date grants exemption to 'aerials or antennae for radio telephony and radio telegraphy' from payment of basic custom duty falling under sub-Heading 8529.10. Applying principle laid down in Jain Engineering reported at 1987 (32) ELT 3 (SC) at para 10, and Johnson & Johnson reported at 1997 (92) ELT 23 (SC) at para 7, exemption to aerials and antennae of sub-Heading 8517.70 is available. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments and in written submissions made by the both the sides. 4.2 Commissioner (Appeals) has in the impugned order considered the issue of classification of impugned goods in detail and have arrived at the classification of th....
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....he 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 and IA No.82612/2020-CONDONATION OF DELAY IN FILING APPEAL ) Date : 28-03-2022 This petition was called on for hearing today. CORAM : HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE MR. JUSTICE ABHAY S. OKA For Petitioner(s) Mr. Balbir Singh LD ASG Mr. Mukesh Kumar Maroria, AOR Mr. Rupesh Kumar, Adv. Mr. Bhuvan Mishra, Adv. Mr. Udai Khanna, Adv. For Respondent(s) Mr. K. R. Sasiprabhu, AOR (NP) Mr. Vishnu Sharma, Adv. Mr. Tushar Bhardwaj, Adv. UPON hearing the counsel the Court made the following O R D E R In view of the letter circulated by the learned counsel for the respondent seeking adjournment on the ground of personal difficulty, list the matte....
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.... 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. These are of many types. The key feature of a switching system is the ability to provide, in response to coded signals, an automatic connection between users. Automatic switchboards and exchanges may operate by means of circuit switching, message switching or packet switching which utilize microprocessors to connect users by electronic means. Many automatic switchboards and exchanges incorporate analogue to digital converters, digital to analogue converters, data compression/decompression devices (codecs), modems, multiplexors, automatic data processing machines and other devices that permit the simultaneous transmission of both analogue and digital signals over the network, which enables the integrated transmission of speech, other sounds, characters, graphics, images or other data. ..... (F) Transmitting and receiving apparatus for radio-telep....
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....nsmission 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 00 -- 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 62 10 --- PLCC equipment 8517 62 20 --- Voice frequency telegraphy 8517 62 30 --- Modems (modulators-demodulators) 8517 62 40 --- High bit rate digital subscriber line system (HDSL) 8517 62 50 --- Digital loop carrier system(DLC) 8517 62 60 --- Synchronous digital hierarchy system(SDH) 8517 62 70 --- Multiplexers, statistical multiplexers 8517 62 90 --- Other .... ...." 18. On going through the relevant HSN notes, we find that the apparatus or equipments referred in the notes are complete apparatus and not Populated Printed Circuit Boards of such apparatus. As submitted by the respondent the Network Interface Cards referred to in the notes are not PCB of any transmission or reception apparatus of heading 8517. Network Interface Cards connect the computers to the internet and therefore can be considered to have....
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.... on it, therefore, it can be considered as a machine, which independently receives and transmits electromagnetic waves. 43. The respondent's contention, on the other hand, is that the antenna is a passive element. It cannot function on its own unless connected to the base station, Therefore, the same does not fall within the scope and meaning of 'machine' prescribed at Note 5 under Section XVI. 44. In support of their contention that the antenna imported for base station is a passive element, the respondent placed on record the opinion of Vinod Gandhi & Associates, Government registered Chartered Engineer. Also, they have placed a letter dated 12-11-2018 issued by the manufacturer of antenna i.e. M/s Ace Technology, Korea i.e. antenna supplied by them are passive part of base station i.e. e Node B (Sic). It is clarified that the antenna on its own is not capable of performing any function and when connected, it only transmits and receives only the signals. It is further stated that the antenna is not performing in any other functions like conversion or regeneration of voice, images or other data signals or switching and/or routing of signals. No technical literature....
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....s communication system cannot be applied to the present goods as it would be complete only when connected to a base station. In the event if the antenna so designed, instead of working as a passive element, besides the above function, it also performs some more functions as in the case of other entries under the same category, its classification under sub-heading 8517 62 may be attracted considering the same as an independent of 'machine'. 46. The Revenue's contention to classify the 'antenna' for base station under sub-heading 8517 62 rests on the ground that as per Note 2(a) of Section XVI, 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. Further it is contended that Antenna is a part of a machine classifiable under Heading 8517, only in the situation when it is not covered by any other headings of the section. As per department, since it is classifiable under 8517 62, hence, not to be considered under sub-heading8517 70 as 'parts'. The said Chapter note reads as follows : "2. Subje....
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....e of classification of parts in the case of N.I. Systems India P. Ltd. - 2010 (256) ELT 173 (SC) = 2010-TIOL-52-SC-CUS and held as under:- "28. For the reason given hereinafter, we hold on the basis of technical material (including the importer's own catalogue and webcast) that Controllers (including embedded controllers) are not merely PCs/ADPMs, but have a specialized structure and specific functions to perform and are therefore classifiable under Chapter 90. 29. Similarly, I.O. Modules and Chassis, which are the subject matter of import in this civil appeal are meant to operate as parts of industrial Process Control equipments like sensors. These I.O. Modules come with software tailored to their specific pre-defined functions. Therefore, one has to see the package in the holistic manner. The package as a whole both hardware and software- constitutes one single functional unit. Accordingly, we hold that I.O. Modules and Chassis are classified as parts and accessories of Automatic Regulating or Controlling Instrument/Apparatus under CTH 9032.90.00." 20. In view of the above, we find that the Department could not support their contention. No technical literature was submi....