TaxTMI 
TaxTMI 
2023 (7) TMI 1297
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....bills of entry number 5035476 dated 01.02.2018, 5035629 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 ....
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.... The BTS (Base Transceiver Station - for GSM/EDGE and CDMA 2000) or the NodeB (for WCDMA/HSPA) or the eNodeB (for LTE) converts the signal in electrical domain to the electromagnetic domain. The antenna, 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....
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.... dialed signals to tone signals. It is accordingly apparent that other communication apparatus which allows for the connection to a wired or wireless communication network' is classifiable as an apparatus for communication in a wired or wireless network (such as a local or wide area network) and would 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 ....
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....G, and 4G/LTE. It is also apparent that the imported antennas are finished products which are traded on an individual basis. The Order-in-Appeal observes that the exemption notifications have been treating antenna as parts of apparatus for radiotelephony and radiotelegraphy and that Notification No. 11/2018-Customs dated 02.02.2018 has classified 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 ....
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....o 85.28. Sub-Heading 8529.10 by name and description covers 'aerials and aerial reflectors of all kinds'. By amendment made vide the Finance Act 2021 whereby a new Tariff Item 8517 71 00 was introduced within Sub- Heading 8517.70 to cover Aerials and aerial reflectors of all kinds; parts suitable for use therewith', w.e.f., 01.01.22, without any change in the Heading 85.17 or sub-Heading 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) a....
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....f CESTAT, in case of Reliance Jio Infocom [2019 (369) ELT 1713 (T-Mum)} and bench have decided the issue in favour of respondents. 4.4 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 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'B....
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....n 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. 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 ....
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..... (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 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....
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....ission 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 voltages and which can convert electromagnetic wave to current and voltages with these waves impinge 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 bas....
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....ctro-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 itself is a complete device and has capability of functioning on its own of conversion of electrical signals into electromagnetic waves and vice versa in a wireless 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 perf....
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....9;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 since parts of BTS, as held by Hon'ble Supreme Court in Hutchison Essar South Ltd.'s case (supra), therefore, be classified as "parts" under Tariff Item 8517.7090. 20. We also find that Hon'ble Apex Courts has dealt the issue 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 b....