AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (4) TMI 972
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....7 (Sl. No.20), as amended. 2.2 The brief facts of the case are that during Post Clearance Audit of import transactions of the appellants for the period November, 2018 to October, 2019 through Air Cargo Complex (ACC) Customs Commissionerate, Sahar, Mumbai, the Department alleged that the appellants had incorrectly claimed concessional rate of duty under Sl. No.20 of Notification No.57/2017-Customs dated 30.06.2017. Accordingly, the Department had conducted Pre-Notice Consultation on 19.02.2020 and 13.08.2020 with the appellants for advising them to voluntarily pay the differential duty in denial of the exemption claimed by the appellants and after their disagreement, the Department had issued show cause proceedings by issue of Show Cause Notice (SCN) dated 06.10.2020. Out of the total 22 Bills of Entry (B/E) covering the entire import transactions during the disputed period, 2 B/Es relating to imports by STPI were excluded being imports under free of duty, and differential customs duty of Rs.36,16,445/- was demanded under Section 28(1) of the Customs Act, 1962 along with applicable interest, besides the proposal for confiscation of the impugned goods under Section 111(m) ibid and i....
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....ncorrect claim of exemption does not attract the provisions of section 111 ibid for confiscation and imposition of penalty on the appellants. Further, learned Advocate for the appellants also submitted a written statement mentioning that they are withdrawing the submissions made in para 52 of the appeal memorandum claiming that the SCN dated 07.10.2020 was issued by Additional Commissioner of Customs (Audit) who is not notified as 'proper officer' of Customs under Section 6 ibid, as the Government had issued necessary Notification No. 39/ 2018-Customs (N.T.) dated 11.05.2018. 3.2 In support of their stand, learned Advocate had relied upon following decisions of the Tribunal and judgement of Hon'ble Supreme Court, in the respective cases mentioned below: (i) Commissioner of Customs-Mumbai Vs. Reliance Jio Infocomm Ltd., - Final Order No.A-85669-85671/2022 of CESTAT, Mumbai upheld in Civil Appeal No.1475-1477/2023. (ii) Seagull Fabricators Pvt. Ltd. Vs. Commissioner of C. Ex., Mumbai-III - 2001 (127) E.L.T. 186 (Tri.- Mum.) (iii) Wipro GE Medical Systems Ltd. Vs. CC,- 2006 (206) E.L.T. 400 (Tri.- Bang.) (iv) Lewek Altair Shipping Pvt. Ltd. Vs. Commissioner of Customs, Vij....
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....., Optical Transceiver is not Optical transport equipment and rather sub-system/sub-assembly/part of later. I, after going through all the submissions of but the parties, find the appellants' claim to be an afterthought and liable to be rejected mainly on following grounds: (a) The declared description i.e., Thanks itself in the case that item incorporates Transmitter [Optical Sub-Assembly] (TOSA) and Receiver [Optical Sub-Assembly] (ROSA), both in itself and thus in my view, it is more than sufficient to conclude that impugned goods were complete unit in an order to justify that impugned goods were Optical transport equipment. (b) It is the appellant who declared impugned goods as optical transceiver, it is on record that they have nowhere mentioned them to be sub-system/subassembly/ part of 'Optical Transport Equipment' (c) Further they classified impugned goods at 85176290 which is meant for Optical transport equipment. If the goods were be sub-system/subassembly/ part of 'Optical Transport Equipment' then appellant should have classified them at CTH 8517 70 90 men for parts of heading 8517... It cannot be a choice of the applicant that at the time of clearance, they....
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....(51 of 1975) as are specified in the corresponding entry in column (2) of the said Table, when imported into India, from so much of the duty of customs leviable thereon under the said First Schedule as is in excess of the amount calculated at the standard rate as specified in the corresponding entry in column (4) of the said Table subject to any of the conditions, as specified in the Annexure to this notification, the condition number of which is mentioned in the corresponding entry in column (5) of the said Table. TABLE S. No. Chapter or Heading or Sub-heading or tariff item Description of goods Standard Rate Condition No. (1) (2) (3) (4) (5) 1. 64016 99 90 The following goods for use in manufacture of cellular mobile phones, namely :- (i) Microphone Rubber Case (ii) Sensor Rubber Case / Sealing Gasket including sealing gaskets / cases from Rubbers like SBR, EPDM, CR, CS, Silicone and all other individual rubbers or combination / combination of rubbers 10% 1 2. 7318 15 00 Screw for use in manufacture of cellular mobile phone 10% 1 3. 77326 90 99 SIM socket / Other Mechanical items (Metal) for use in manufacture of cellu....
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....) and Long Term Evolution (LTE) products 10% -" ; 8.2 Plain reading of the above Notification provides that the imported goods classifiable by specific Chapter or heading or sub-heading or tariff item of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) in Column (2) of the Table and covered under the description are exempt from the payment of Basic Customs duty to the extent stated therein. The description of the goods mentioned in various serial number of the above notification are of different types viz., "all goods other than...", "specific goods like Telephones for at Sl. No. 4", "The following goods .... for use in manufacture ..." and "Goods covered by specific description". It is, therefore, clear that in order to decide whether the exemption is applicable to the imported goods, it is necessary to classify the goods under specific Customs Tariff Item (CTI) and to examine, whether such CTI is covered under the above exemption. In respect of 'All goods other than the following as specified therein', as in Serial No. 20, it would not suffice to see that the imported goods are covered under a particular description, as is done in this case by the impugned order....
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....or transmission or reception of voice, images or other data, under second group of items mentioned in (ii) above, and are also not covered as specified part under CTI 8517 7010 viz., 'Populated, loaded or stuffed printed circuit boards', these are specifically covered under the CTI 8517 7090 as 'other parts'. 9.1 We also find that the issue of classification of Soft Form-factor Pluggable (SFP) is no more open to dispute as the Tribunal in the case of Reliance Jio Infocomm Ltd. (supra) had decided the issue, by holding that the classification adopted under CTI 8517 7090 by the Commissioner (Appeals), Hyderabad which have been followed by the Commissioner (Appeals), Mumbai. The relevant paragraphs of the above order of the Tribunal is extracted and given below: "A bunch of appeals (No. C/88479, 88483, 88485, 88487, 88492/2018, C/87032, 87033, 87034, 87035, 87036, 87037, 87038, 87039/2019) filed by the Revenue against various Order-in-Originals passed by the Commissioner of Customs, Mumbai (Air Cargo Import) were decided by this Bench vide Final Order No. A/85571-85583/2022 dated 22.06.2022. The respondents filed a miscellaneous application seeking the rectification of the order in....
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....dules imported are equipment by themselves which are capable of providing the essential function of transmission and reception of optical data they are merely parts of the ethernet switch/parts of telecom equipment. The chapter sub-heading 8517 of CTA is given as below. xx xx xx xx 6. The original authority has held that the impugned goods cannot be treated as parts but instead are themselves machines. The appellant has explained that the product SFP is a standalone pluggable module which can be plugged into any computer or networking such as Ethernet switch, IP Routers etc and could act as connector providing interface between two domains i.e. electrical and optical; that it gives information about optical power levels and electrical supply parameters, but only when SFP is plugged into Ethernet switch which has the requisite software to report these values.......It is noted that the OTN products provide for functionality of transport, multiplexing, switching, management, supervision and survivability of optical channels carrying client signals, whereas as explained by the appellant and the original manufacturer, the impugned goods do not perform such functions. Therefore, I ho....