TaxTMI 
TaxTMI 
2023 (4) TMI 1473
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....No.20, wherein the effective concessional basic customs duty is @ 10%. These Bills of Entry were assessed by an order under Section 17(1) of the Customs Act, 1962. Original authority held as follows:- "11. Importers claim of classification 851762 for "Access Point/(Multiple Input/Output (MIMO) product", does not appear to be correct, as in the Notification 057/2017-Cus Sr. No. 21 (c) (as amended by Notification 75/2018 dated 11.10.2018) itself, classification of the subject item MIMO products is clearly mentioned under tariff item 85176990. Therefore, there is no scope remains left for probability of classification of Access point/MIMO product" under tariff item 851762. 12. in view of the facts mentioned above, relevant tariff heading and exemption notifications. I find that the impugned goods Access Point being MIMO Product, as per notification 057/2017- Cus Sr. No.21 (c) as amended by Notification 75/2018 dated 11.10.2018, is classifiable under tariff heading 85176990 and liable for 20% merit basic custom duty. 13. In view of above, I order to reject the classification 85176290, and exemption benefit of Notification No. 57/2017 at Sr. No. 20, claimed by....
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....imported by the appellants from CTH 85176290 to CTH 85176990 on the basis of a notification without making any case for revising the classification of the goods. We find that this is not permissible. We also find that department's reliance on Notification No.2/2019 which is subsequently issued is misplaced; cannot be made applicable retrospectively and therefore, not applicable to the present facts of the case. We find that while Revenue was free to decide on the eligibility of the impugned products for exemption under any notification. It is to be noted that the learned counsel for the appellant submits that they are discharging duty, at the merit rate, on carrier Ethernet Switches when they are imported for supply to telecom service providers, even though classified under CTH 85176290. However, it is not open to them to change the classification on the basis of an exemption notification when there is no change in the Customs Tariff Act, 1975. Therefore, we find that the impugned goods are rightly classifiable under CTH 85176290 in view of the past and present practice of the department, Rulings of US and German Customs and the order by ADG (Adjudication), DRI. Department has ....
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....y and LTE standard. 15. What needs to be decided in the present appeal is regarding the availability of the exemption from the whole of the customs duty claimed by Ingram Micro under the notification. The Central Government, by the said notification, exempted the goods described in column (3) of the Table when imported into India, from the whole of the duty of customs leviable thereon. Serial No. 13 of heading 8517 exempts all goods, except those mentioned in (i), (ii), (iii) and (iv). Ingram Micro had claimed exemption under Serial No. 13 (iv) which is: "(iv) Multiple Input/Multiple Output (MIMO) and Long Term Evolution (LTE) Products." (emphasis supplied) 16. A bare perusal of the exclusion clause (iv) under Sl. No. 13 of notification shows that it covers MIMO and LTE products. The sole dispute in this appeal is whether this exclusion clause covers products having only MIMO technology and not working on LTE standard. Exclusion clause (iv) uses the conjunction 'and' and, therefore, it can be urged that the scope of clause (iv) can be restricted to those products that have MIMO and LTE both and that the product that only has MIMO technology may....
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....; is not used after the words 'Multiple Input/Multiple Output (MIMO)'. Infact, 'and' is used after the words 'Multiple Input/Multiple Output (MIMO)'. It is seen that in entry (iii) of the same Serial No. 13 of notification, every technology is followed by the word 'products': "Carrier Ethernet Switch, Packet Transport Node (PTN) products, Multiprotocol Label Switching- transport Profile (MPLS-TP) products;" 21. Learned special counsel for the appellant contended that clause (iv) would effectively mean and cover two categories of products, namely, (i) Multiple Input/Multiple Output (MIMO) products and (ii) Long Term Evolution (LTE) products and that MIMO products and LTE products are products which have distinct identities. Learned special counsel also contended that the expression 'Multiple Input/Multiple Output (MIMO)' appearing before 'and' does not, by itself, mean anything unless it is followed by expressions like 'technology' or 'products'. Since the exception carved out has to be 'goods', this expression has to be interpreted to connote products based on MIMO technology. Thus, the expres....
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.... used in the sense of conjunctive word. Therefore ld. Advocate submits rightly that the word has been used in conjunctive sense in the tariff heading. This sense is also apparent if we look into the first part of the Tariff heading where a reference has been made to the disjunctive word `or' in the expression preparation of flour, meal, starch or malt extract under Tariff Heading 19.01. Hence the expression "milk and cream" in the second portion of the Tariff Heading 19.01 would mean that both milk and cream should be present in the food preparation classifiable under the said heading. We do not agree with the plea of the ld. JDR that by use of "whole milk powder" and "cream" being necessarily contained in the whole milk powder, the preparation should be deemed to have contained both milk and cream. The two products, viz., "milk" and "cream" are commercially known differently. When the Tariff heading uses names of two different commercial commodities joined by a conjunctive word, the preparation must contain those commodities in their natural form as available in the market. There are preparations which are made of both milk and cream. One of the examples given by the ld. Advoc....