TaxTMI 
TaxTMI 
2024 (5) TMI 1547
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....% in terms of S. No. 20 of Notification No. 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. 57/2....
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....N OLTs being eligible for concessional rate and how the same differentiates 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 see....
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.... 3.6 Summarizing all the applicant has stated that GPON OLTs are eligible for concessional BCD rate of 10% in terms of S. No. 20 of the exemption 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 su....
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....ATUS FOR THE 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), 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) : &nbs....
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....ptical Transport Network (OTN) products; (e) IP Radios; (f) Soft switches and Voice over Internet Protocol (VoIP) equipment, namely, VoIP phones, media gateways, gateway controllers and session border controllers; (g) Carrier Ethernet Switch, Packet Transport Node (PTN) products, Multiprotocol Label Switching Transport Profile (MPLS-TP) products; ^5a[(h) Multiple Input/Multiple Output (MIMO) products; (i) Long Term Evolution (LTE) products] 10% -] 7.3.1 From the above it is evident from Sr. No. 20 para (c) that Combination 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 releva....
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....i) Optical Line Terminal (OLT) for FTTX (GPON/EPON/XGSPON/10GEPON/NG-PON2/25GPON/50GPON etc.); (ii) Optical Network Terminal (ONT) for FTTX (GPON/EPON/XGSPON/10GEPON/NG-PON2/25GPON/50GPON etc.). (e) Internet Protocol (IP) Radios The Machines/apparatus covered under this category include - (i) Wi-Fi Access Point Equipment and Wi-Fi Controller ; (ii) Repeaters (RF/RF-over-Optical) & In-Building Solution (IBS) - Indoor/Outdoor including active and passive Accessories (2G/3G/4G/5G and onwards); (iii) Wireless Radio Link - (IP/Hybrid) equipment. (f) Soft switches and Voice over Internet Protocol (VoIP) equipment, namely, VoIP phones, Media gateways, Gateway controllers 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 communicati....
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.... E.L.T. 3 (S.C.) and CCE, Bolpur v. Ratan Melting & Wire Industries - 2008 (12) S.T.R. 416 (S.C.) upheld the same view. In the matter of CCE, Bolpur v. Ratan Melting & Wire Industries, the constitution bench of the Hon'ble SC held that : 6. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court, it is for the Court to declare 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 fu....