TaxTMI 
TaxTMI 
2024 (1) TMI 1218
X X X X Extracts X X X X
X X X X Extracts X X X X
.... order No. A/12699/2018 dated 03.12.2018. Therefore, the issue is no longer res-integra. He submits that though the revenue has filed the appeal/SLP before Hon'ble Supreme Court against this Tribunal's order dated 03.12.2018 however, no stay was granted. 3. Shri R.R Kurup Learned Superintended (AR), appearing on behalf of the revenue reiterates the finding of the impugned order. 4. On careful consideration of the submission made by both the sides and perusal of record, we find that as regard the assessee's appeal, the dispute relates to the classification of the goods Encoder/Multiplexer under different Model whether the same classifiable is under 85 17 6290 or 85 28. This issue in the appellant's own case has been decided by this Tribunal vide final order No. A/12699/2018 dated 03.12.2018, which is reproduced below:- "6. We have heard and carefully considered the submissions made by both the sides and perused the records. We find that the dispute pertains to classification of the goods, viz. encoders, modulators and multiplexers, which are for conversion of voice, images and other data prior to its transmission for various networks. The rival entries involved in this case are ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and are used for various purposes for transmission of data. The adjudicating authority has classified the above items by terming the same as part of head-end facility used in cable television as master facility for receiving television signals for processing and distribution over a cable television system. The adjudicating authority thus held that the goods would be classifiable under Chapter 8528. The Appellants are selling these goods not only to TV Cable operators but also to other users such as Space Centre Application (Space & Satellite related applications), Infosys (Information Technology & Software industry) , Hathway Cable Datacom (Cable & Broadband Network service provider), Broadband (Internet service provider). We find that these products are used for conversion and compression (coding) used for conversion of signals as apparatus for transmission at transmission site for both wired and wireless networks (WAN & LAN). The goods are not used at subscribers end as reception apparatus for television. The adjudicating authority has over-looked this aspect while passing the impugned order. Further, we find that the same goods have been imported into India by others classifying....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lace and is not capable of transmitting the signals which can be received by general public cannot be called broadcast equipment. What is covered under Heading No. 8525 50 10 and 8525 50 20 are the transmitter which can transmit radio or TV programme intended for reception by public and it is such equipment which are restricted for import. Since the equipment imported cannot transmit the signals for reception by general public but is meant only for transmitting the audio or video signals by a reporter from some place to his studio from where the signals are broadcasted for general public, the equipment, in question, cannot be classified under Heading No. 8525 50 20 and hence, the same would not be restricted for import. The impugned order, therefore, is not sustainable. The same is set aside. The appeal is allowed. The Hon'ble Supreme Court in the case of Commr. of Customs Vs Multi Screen Media , 2015 (322) ELT 421 SC in the similar set of controversy has held as under :- Para 2. It is not in dispute that the "business satellite receivers" of the respondent has the transmitting as well as reception functions. It is for this reason that the assessee's contention is the goods fal....
X X X X Extracts X X X X
X X X X Extracts X X X X
...."Para 4. - We have carefully considered the submissions made by both sides. We find that the learned Commissioner (Appeals) has classified the impugned goods under CTH 8517 on the following findings:- "5. Considered the submissions. The appellant is aggrieved by the classification of the impugned goods under CTH 8543 instead of CTH 8517 as claimed by them. As per the installation manual (page 9) the goods "McAfee Web Gateway ensures comprehensive security for networks. It protects networks against threats arising from the webs, such as viruses and other malware, inappropriate content, data leaks, and related issues. This appliance is installed as a gateway that connects a network to the web. Following the web security rules, it filters the requests that users send to the web from within the network. Responses sent back from the web and embedded objects sent with requests or responses are also filtered. Malicious and inappropriate content is blocked, while useful content is allowed to pass through." Therefore impugned goods act as a security device in a network and it protects the network from external malicious threats. It is not the case of the department that the impugned goods....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... under CTH 8517. In the impugned goods being of similar nature are classifiable under CTH 8517. As far as past clearance of similar goods is concerned no demand notice seems to have issued by the department, till date." From the above finding, it is observed that the learned Commissioner (Appeals) has contended that the product in question is covered under the Network Interface Card, therefore, it was classifiable under CTH 8517. Para 5. On the submissions of the learned Counsel, based on various authorities, we find that the product is a Gateway Security Device. It has the function of transmitting the data through Network from one server to other and it has function of security for the data transmitted. Since the product has feature of transmission of data, it merits classification under the communication apparatus i.e. under CTH 8517. Heading 8543 proposed by the Revenue is a residuary entry. Since as per the application and function of the product, it is used for communication and transmission of the data. It finds place under the specific entry i.e. under 8517. Therefore, it cannot be classified under residuary entry, which is meant for a product not elsewhere specified. As....