TaxTMI 
TaxTMI 
2024 (9) TMI 918
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 1.3.2002 and Notification No.12/2012-Cus. dated 17.03.2012 mis-declaring as parts for manufacture of Base Trans-receiver Station (BTS), whereas they were not manufacturing BTS equipment. On the basis of intelligence, it is alleged that the appellants are manufacturers of telecom racks for which they import radial/centrifugal fan, temperature control module, CS lock tongue, lamp cable, etc., declaring the same as "Parts for BTS rack, Parts for Base-receiver Stations, For BTS, Parts of Telecom Racks", etc., and claimed exemption under Sl. No.242 of Notification No.21/2002-Cus. dated 01.03.2002 as amended and Sl. No.372(ii) under Notification No.12/2012-Cus. dated 17.3.2012 as parts for manufacture of BTS (Sl. No.3(a) of List 22 and List 17 applicable to Sl. No.242 of Notification No.21/2002-Cus. dated 01.03.2002 as amended and Sl. No.372(ii) under Notification No.12/2012-Cus. dated 17.03.2012). Show-cause notice was issued to the appellant on 05.06.2013 for recovery of the customs duty short-paid amounting to Rs.84,41,352/- with interest and proposal for imposing penalty under Section 114A and Section 114AA of the Customs Act, 1962, during the period June 2008 to November 2012. On....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ans, gore cooling filters, etc., manufactured by the Appellant) and active components such as Base Band Unit (BBU), radio equipment, transmission equipment, etc., manufactured by Ericsson. It is submitted that only when the above parts are put together, it qualifies as an operational/functional BTS. Without either of the parts, the BTS is incomplete and cannot function efficiently. In support, definition of BTS given in Newton's Telecom Dictionary is relied upon, which reads as:- "The electronic equipment housed in cabinets that together with antennas comprises a PCS facility or site. The cabinets include an air conditioning unit, heating unit, electrical supply, telephone hook-up, and back-up power supply". A plain reading of the above definition shows that BTS is an electronic equipment housed in cabinets. Therefore, the telecom racks/cabinets manufactured by the Appellant form an integral part of BTS. In other words, without the cabinet/rack along with other necessary items, the station is incomplete as they play a major role in the efficient functioning of BTS. 3.2 Further, reliance was placed on the following case to hold that telecom racks/cabinets form an integral part o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e to be used for manufacture of final goods and not the intermediary goods as claimed by the appellant, does not in any way provides them the liberty to construe the Notification as per their convenience. Rather, for strict interpretation of the Notification, it is imperative that the Notification should specify that the imported goods may be used for manufacture of intermediary goods/parts of BTS and in the absence of the same, the benefit of the Notification has been rightly denied in the impugned orders. 4.1 It is his contention that the question to be decided is not as to whether the denial of benefit is correct or otherwise, rather than the question to be decided is whether the benefit of Notification is correct, just and legal or not. The Notification should be strictly interpreted as held by the Hon'ble Supreme Court in the case of Hari Chand Shri Gopal: 2010 (16) ELT 3 (SC) and Dilip Kumar & Co.: 2018 (361) ELT 577 (SC). 4.2 Further, he has submitted that the appellant have claimed that they were manufacturing telecom racks which are integral part of BTS. In order to substantiate their claim, they produced letter from their client M/s. Ericsson, Technical Reports from SIT....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a. Radial/centrifugal fans b. Temperature control module c. CS lock tongue and CS lock middle block d. CS door stay e. Alarm cable f. Lamp cable g. Ergoform S handle h. Dirak lock insert i. Gore cooling filters j. Air-to-air heat exchanger k. CS lock bar stay l. Hinge, m. cable hex side & cable hex door n. CS thermal isolation foam o. Lamp bulb p. Lamp holder q. CS OVP grounding screw r. Screw M5 X 15 SS Torx head s. KSS edge protection t. CS BS and M5-2 screw 8. The said parts are used in the manufacture of telecom racks i.e., outdoor compact enclosures/outdoor cabinets, following the procedure laid down under Customs(Import of Goods at concessional rate for Manufacture of Excisable Goods),Rules,1996. The said manufactured 'telecom racks' are supplied to M/s. Ericsson India Pvt. Ltd., who in turn assemble with other components to manufacture 'Base Trans-receiver Station'(BTS) and supply the same to various telecom service providers . The appellant claimed exemption under Sl. No.242 Notification No.21/2002-Cus. dated 01.03.2002 being parts of Goods of sr.239 read with goods in List No.22 appended to the said Notification. The conditions pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n No.12/2012-Cus. dated 17.03.2012 was issued whereunder the appellant claimed the benefit under Sl. No.372(ii) of List 17. The conditions prescribed under the said Notifications are 5 and 52 which reads as follows: Sl. No. Chapter or Heading or sub-heading or tariff item Description of goods Standard rate Additional duty rate Condition No. 372 84, 85 or 90 (i) Goods specified in List 17 required for basic telephone service, cellular mobile telephone service, internet service or closed users‟s group 64 KBPS domestic data network via INSAT satellite system service. Notwithstanding anything contained in List 17, the exemption shall not apply to the following goods falling under 8517, namely:- (a) Soft switches and Voice over Internet Protocol (VoIP) equipment namely VoIP phones, media gateways, gateway controllers and session border controllers; (b) Optical Transport equipment; combination of one or more of Packet Optical Transport Product/Switch(POTP/POTS), Optical Transport Network(OTN) products, and IP Radios; (c) Carrier Ethernet Switch, Packet Transport Node (PTN) products, Multiprotocol Label Switching-Transport Profile (MPLS-TP) products; (d) Multiple In....
X X X X Extracts X X X X
X X X X Extracts X X X X
....part will construe part as a whole. In support, they have referred to the judgment of this Tribunal in the case of Collector of Central Excise v. Mahendra Engg. Works, 1993 (67) ELT 134 (Tribunal) and M/s. Racily Udyog, Shri Kalyan Das v. Commissioner of Central Excise, Kolkata-III, 2023-VIL-411-CESTAT-KOL-CE. 10. The learned Authorised Representative for the Revenue on the other hand heavily relied upon the judgment of the Principal Bench of the Tribunal in the case of Raydean Industries Ltd. (supra). Further, he has submitted that the exemption Notification has to be strictly construed in view of the ratio laid down by the Hon'ble Supreme Court in the case of Hari Chand Shri Gopal (supra) and Dilip Kumar and Co.'s case (supra). 11. We have carefully analysed the arguments advanced by both sides. From the facts, it is clear that the imported parts classified under different Tariff Headings are used in the manufacture of outdoor cabinets which is called as Telecom Racks by the appellant and the outdoor cabinets are ultimately cleared by the appellant to M/s. Ericsson. The outdoor cabinets are enclosures with doors and panels made to specified dimension and fitted with various ite....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s M/s. Dilip Kumar and Ors. 2016 (5) TMI 185 - Supreme Court = 2018-TIOL-302-SC-CUS-CBand in Larsen & Toubro Ltd. versus Commissioner of Central Excise, Hyderabad 2015 (324) E.L.T. 646 (S.C.) = 2015-TIOL-236-SC-CX. 22. The distinction sought to be drawn by the learned counsel for the appellant between 'devices' and 'systems' is not of relevance to the present case because both non-conventional energy devices or systems specified in List 8 are covered by the description of excisable goods." 13. Applying the principle laid down by the Tribunal in the aforesaid case to the facts and circumstances of the present case, we find the Appellant claimed exemption on the imported parts listed above under Sl. No.242 of the Notification 21/2002 Cus./ sr. no. 372 of Notification No. 12/2012cus which allows exemption to imported parts of 'specified goods' at List 22/17 referred in Sl. No.239/372 of the respective Notifications as the case may be, viz. "3) Radio communication equipment including VHF, UHF and microwave communication equipment of the following description:- (a) Base Transreceivers stations (BTS)" In the instant case the use of imported parts were in the manuf....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the manufacture of power-driven pumps under Notification No.236/1986 also not applicable to the facts of the present case. Similarly, the judgment of the Tribunal in the case of M/s. Racily Udyog, Shri Kalyan Das's case, whether battery is considered as a part of the Solar Power Generating System, is not applicable to the present case as the Solar power batteries are directly used in the Solar Power Generating System and not undergone further manufacture to be used in the Solar Power Generating System. 16. On the issue of limitation, we find that the appellant has been importing the said materials declaring the description of the goods correctly mentioned as above classifying the same under respective Tariff Heading. For example, in the Bill of Entry dated 24.07.2012: imported item was "Radial Fan"; Bill of Entry dated 14.04.2012: CS Door Stay (Steel); Bill of Entry dated 16.4.2012; Temperature Control Module and subsequently obtained necessary permission under Annexure-III to manufacture outdoor cabinets/Telecom Racks from the department indicating relevant Notification number and its declaration as "to use the said imported air filter elements for the manufacture of parts of Te....