TaxTMI 
TaxTMI 
2024 (5) TMI 1547
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....o. 57/2017-Cus., dated 30-6-2017 or otherwise. 2. Submission by the applicant : 2.1 The applicant is engaged in the business of manufacturing and trading of telecommunication network equipment both within and outside India, network design, installation and commissioning, providing support services to major telecom and internet service provider and developing software. 2.2 The Applicant is importing "Gigabit Passive Optical Networks Optical Line Terminal" (hereinafter referred to as "GPON OLT/subject goods") and selling the same domestically to its customers. The Applicant is presently importing the subject goods at Chennai port and Delhi port. The quantum of imports at the Delhi port is negligible insofar as imports at Delhi port are only made for testing and related purposes and not in the ordinary course of commercial business. The different models of GPON OLTs presently being imported are as under : 2.3 For the imports made at Chennai the Applicant was always classifying the subject goods under CTH 8517 62 90 and discharging concessional Basic Custom Duty (BCD) @ 10% in terms of S. No. 20 of the Exemption Notification No. 57/2017, dated 30-6-2017 (hereinafter referred to as ....
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....ates from products which are "Combination of one or more of Packet Optical Transport Product or Switch (POTP or POTS)". 2.8 The Applicant has thus cleared the goods upon payment of BCD @ 20% under protest, without accepting the view of the customs authorities, but to cater the business requirements. Sample import documents discharging BCD @ 20% under protest on import of GPON OLT are attached herewith and marked as Annexure "E" to the CAAR-1 application. 2.9 The Applicant submits that the subject goods cannot be considered as "Combination of one or more of Packet Optical Transport Product or Switch (POTP or POTS)" and inclusion of the same under this category in the circular is erroneous, in view of the detailed submissions provided hereunder. OLTs and POTPs/POTSs are in stark contrast to each other and by including OLTs in the category of POTP and POTS, the CBIC has gone beyond the ambit of the exemption notification. 2.10 In the above background, the Applicant intends to obtain clarity on the effective BCD rate on the import of GPON OLT products. The Applicant is thus before this Hon'ble authority seeking advance ruling on the following questions : (a) Whether the GPON OLTs ....
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....xemption notification, absent inclusion in any of the exclusion category from (a) to (i) of the exemption notification. 4. Port of Import and reply from jurisdictional Commissionerate : 4.1 The applicant in their CAAR-1 indicated that they intend to import the subject goods from O/o Pr. Commissioner of Customs. Chennai-VII, New Customs House, Meenambakkam, Chennai - 600027. The application was forwarded to the jurisdiction for their comments on 5-9-2023, 1-11-2023, 9-11-2023 & 4-12-2023 however no response was received from the jurisdictional authorities. 5. Details of personal hearing : 5.1 A personal hearing was held on 8-2-2024 at 03:00 PM. Shri. Naveen Kumar (Nokia Solutions/Trade Management India), Shri. Abhay Sethi (Business Dev. Manager), Shri. Rahul Agarwal (EY. Sr. Manager) appeared as Authorized Representatives on behalf of the applicant for the hearing. During the PH. The representatives of the applicant reiterated the content of submitted in the application submitted before this office. They further contended that their subject import goods i.e. OLT (Optical Line Terminal) are eligible for concessional BCD rate of 10% in terms of S. No. 20 of the exemption Notificat....
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...., OTHER THAN TRANSMISSION OR RECEPTION APPARATUS OF HEADING 8443, 8525, 8527 OR 8528 - Telephone sets, *including smartphones and other telephones for cellular networks or for other wireless networks : 8517 11 -- Line telephone sets with cordless handsets : 8517 11 10 --- Push button type u Free - 8517 11 90 --- Other u Free - *8517 13 00 -- Smartphones u 20% - *8517 14 00 -- Other telephones for cellular networks or for other wireless networks u 20% - 8517 18 -- Other : 8517 18 10 --- Push button type u Free - 8517 18 90 --- Other u Free - - 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 u **[20%] - 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 u Free - 851....
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....ion of One or more of Packet Optical Transport Product or Switch (POTP or POTS) will not be eligible for exemption benefit available as per Notification No. 57/2017-Cus., dated 30-6-2017. 7.4 I find that the Board has vide its Circular No. 8/2023, dated 13-3-2023 has clarified items under said entries specifically those at (b) to (h), amongst (a) to (h), in the Notification No. 57/2017-Cus., dated 30-6-2017, for better understanding by all stakeholders for a more effective identification of products and equipment covered therein. The relevant para of the said circular is reproduced verbatim : Attention of the field formations is invited to Notification No. 57/2017-Customs, dated 30-6-2017 amended by Notification No. 2/2019-Customs, dated 29-1-2019 which, against tariff items 8517 62 90 and 8517 69 90, gives descriptions of certain goods that are telecommunication products or equipment. 2. In this context, the Board was apprised that some of these technology related descriptions, specifically those at (b) to (h), amongst (a) to (h), in the notification, need to be better understood by all stakeholders for a more effective identification of products and equipment covered therein....
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....ontrollers and Session border controllers Card/module or sub-systems converting analog voice signal into digital packets that are carried over internet protocol use one or more of these products. Some examples are - (i) Internet Protocol Private Branch Exchange (IP PBX); (ii) IP Multimedia Systems (IMS); (iii) Unified communication systems (UCS). (g) Carrier Ethernet Switches, Packet Transport Node (PTN) products, Multiprotocol Label Switching Transport Profile (MPLS-TP) products The Machines/apparatus covered under these categories include - (i) IP-MPLS Based equipment; (ii) MPLS-TP based equipment; (iii) SDN Based MPLS equipment; (iv) PTN products for Carrier Ethernet Network (CEN) for Access and Aggregation Network Applications (h) Multiple Input/Multiple Output (MIMO) and Long-Term Evolution (LTE) products The Machines/apparatus covered under these categories include - (i) 4G(LTE) products and their Elements, namely - eNode B, RRH, CU, DU, RU, BBU, EPC, MME, SGW, PGW, HSS, IMS, Network In a Box (NIB), 4G CPE, etc.; (ii) 5G produc....
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....are what the particular provision of statute says and it is not for the Executive... 8.3 The Hon'ble High Court of Jharkhand in the case of M/s. LMB Sons v. UOI - (2023) 11 Centax 271 (Jhar.) vide its order dated 9-10-2023 [W.P. (T) No. 5364 of 2022] by reiterating the same view further observed that :- it is also a well-established principle of law that if law prescribes a manner in which a power has to be exercised, that such power can be exercised only in such manner. This has been recently reiterated by the Hon'ble Apex Court in its judgment passed in the case of Dharani Sugars & Chemicals Limited v. Union of India reported in (2019) 5 SCC 480, (Para 55). 8.4 The Section 151A of Customs Act reads as follow : Instructions to officers of customs. - 151A. The Board may, if it considers it necessary or expedient so to do for the purpose of uniformity in the classification of goods or with respect to the levy of duty thereon, [or for the implementation of any other provision of this Act or of any other law for the time being in force, insofar as they relate to any prohibition, restriction or procedure for import or export of goods] issue such orders, instructio....