TaxTMI 
TaxTMI 
2025 (4) TMI 1812
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....of heading 8443, 8525, 8527 or 8528 corresponding to heading 8517 of First Schedule to Customs Tariff Act, 1975 and which again, it is common ground, are not 'Telephone sets, including smartphones and other telephones for cellular networks or for other wireless networks:' or among such of those 'transmission or reception apparatus' specified as headings that are excluded from 'apparatus for communication in wired or wireless network' which itself is included among 'apparatus for transmission or reception of voice, images, or other data' leaving very limited scope for dispute in assessment of 'routers', 'subscriber end equipment', 'IP set top box', 'small form pluggable (SFP)', 'optical network unit (ONU), 'optical network transceivers (ONT)', 'wi-fi mesh extender' and 'multiport ISAM ONT' to duties of customs chargeable under section 12 of Customs Act, 1962. That 'telephone sets, smartphones and other telephones' have turned out to be reference point assures of a certainty that is not so frequent. Yet, that the seeds of discord did fester even in such infertile ground has more to do with consequential claim for eligibility to exemption than with the sophistication of....
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....erential duty of Rs. 424,11,34,837, on imported goods valued at Rs. 33,39,87,76,519 and assessed to duty liability of Rs. 5,22,63,35,546 at the time of import. 3. The liability to differential duty was attributed to incorrect availment of exemption intended by notification [no. 11/2014-Cus dated 1st July 2014] under section 25 of Customs Act, 1962 for such goods corresponding to tariff item claimed by the importer but were not. The adjudicating authority confirmed the demand insofar as 'small form pluggable (SFP)', 'wi-fi mesh extender', 'ISAM ONT', 'HDMI dongle' etc. was concerned by accepting the correctness of classification proposed in the notice even while limiting the recovery to the normal period of limitation and dropped the rest of demands by accepting classification of 'routers' against tariff item 85176930, of 'subscriber end equipment' against tariff item 8517 6950 and of 'IP set top boxes' against tariff item 8517 6960 in First Schedule to Customs Tariff Act, 1975. Consequently, the liability was limited to Rs. 23,46,032 in relation to imports at Nhava Sheva, Rs. 2,60,48,726, in relation to imports at Mumbai and Rs. 10,094,971 in relation to imports at New Delhi whi....
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.... of accepting the classification claimed by the importers, erred as also by limiting the demand pertaining those substituted to the normal period envisaged in section 28 of Customs Act, 1962. According to him, 'machines for the reception and conversion of transmission or regeneration of voice, images or other data including switching and routing apparatus' corresponding to sub-heading 8517 62 of First Schedule to Customs Tariff Act, 1975 makes it very clear that the goods do not find placement elsewhere. He relied upon rule 6 of the General Rules for Interpretation appended to Customs Tariff Act, 1975 with particular reference to the General Explanatory Notes on the manner in which the sub-classification in terms of '-' and '- -' are deployed. He contended that the adoption of appropriate tariff item at '- - -' level requires that the description corresponding to '- -' should also be in consonance whereas the original authority had gone directly to the description at the tariff item level. He submitted that routers are specifically included in sub-heading 8517 62 and, therefore, should rightly find place at the '- - -' level corresponding to 'others' therein. He submitted that ....
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....ioner (Appeal)'s Order dated 25.1.2017 and 30.8.2018, I find that following goods were under dispute in Commissioner (Appeals) 6. a FVOA, F-EVOA SFP, SAL 32068AA/ 2001607520 b XL-8* W, XFP DWDM TW fABLEC (50GHZ 10GXFP) TAB375650046 / 2001607521 c XPF-] .64, 10GBE BASE-L X,3AL82045AA / 2001628622 d Port, 11G Quad Piuggabl e Anyrate, 11QPA4, 8DG60349BA/ 2001598555 Whereas, the goods under dispute in Commissioner (Appeals) Order dated 25.1.2017 were as follows : 7. a) 10 Base - SR SFP Module Part No. SFP-10G-SR b) 10 Base - SR SFP Module Part No. SFP-10G-SR c) 10 Base - SR SFP Module Part No. SFP-10G-SR d) j 10 Base - LR SFP Module Part No. SFP-10G-SR e) 1000 Base - LX LH SFP Transceiver Module, MMF/SMF, 131 ONM, DOM part No. GLCLH SMD Catalyst 4948E 300 WAC Power Supply Part No. PWR-C$9E 300AC-R 9) 1000 Base - LX LH SFP Transceiver Module, MMF/SMF, 850 ONM, DOM part No. GLC-SX-MMD h) Nexus 7000.M2 Series 6 Port 40 GBE with XL Option (Req.QSFP) Part No.N7K-M206FQ-23L (Card) i) QSFP 40 GBASE LR4 Transceiver Module, LC, 10KM Part No.QSFP 40GE PR4 j)  ....
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....factor pluggable does not refer to any particular product but to a form in any product is presented. In this case I find that the goods under reference are transceivers presented in the form of small form factor and are easily gable to the system in which they are used. These products viz. "Optical Transceivers" are known to transmit and receive signal in an optical environment. The CTH 851762 covers machines for transmission and reception of voice, image or other data, such as modems, multiplexers, etc. As per explanatory notes to HSN, the communication apparatus of sub heading 851762 includes multiplexer and related line equipment (e.g. transmitters, receivers or electro-optical converters). In absence of any specific heading for either SFPs or for Optical Transceivers, I find that these goods are appropriately classifiable under CTH 85176290 as 'others'. The only argument which remains to be answered, could be that the impugned goods are not machines as they cannot function on their own and has to be plugged to the switches for providing necessary functions. It is not necessary that for a product to be called as machine/ it has to be always independently working. It may ....
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....HDMI Dongle: 3.7.6.1 The Noticee has also imported HDMI Dongle and classified them under CTH 85176990 under the heading "Others", the SCN proposes the classification of these products under CTH 85176290 as "others." The reasoning given in the SCN for classifying them under 85176290 is based on their technical details / functionality as product supporting MIMO technology. When there is no specific heading in the first schedule of the Customs Tariff Act, 1975 for the item description HDMI Dangle, one has to go through the complete details of the goods in order to ascertain its classification. On going through the description of the impugned goods mentioned as well as their datasheets provided by the notice, I find that these are HDMI stick dongle which acts as Digital Media Renderer (DMR) devise and with telecommunication operators mobile network, it can support wireless tethering service with LTE 4G network. These goods incorporate MIMO technology. Ongoing through these functionalities, I find that these dongles can be inserted in HDMI port for displaying the digital media. This function Involves reception/conversion and transmission of the image, data or video. As the CTH ....
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.... (iii) Carrier Ethernet Switch, Packet Transport Node (PTN) products, Multi protocol Label Switching-Transport Profile (M PLS-TP) products; (iv) Multiple Input / Multiple Output (MIMO) and Long Term Evolution (LTE)' 9. The enumeration supra was amended by notification [no. 58/2017-Cus dated 30th June 2017] including several tariff lines that were entitled to exemption without any exclusion as far as the claimed classification is concerned. 10. It is evident that the heading itself comprises 'other apparatus for transmission of voice, images or other data, including apparatus for communication in a wired or wireless network' and coverage of impugned goods therein is not in dispute. However, customs authorities considered the goods to be 'machines for reception, conversion and transmission or re-generation of voice or images or other data' with the next sub-heading pertaining other than 'printed circuited boards' being out of question. Nonetheless, even without the benefit of distinction in terms of '-', the 'other' corresponding to sub-heading 8517 69 of First Schedule to Customs Tariff Act, 1975 includes 'routers' and 'subscriber end equipment' and 'set top boxes' as....
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....ugh it is correct that clause (iv) would effectively mean include two categories of products namely MIMO and LTE and that they have distinct identities, but it is not possible to accept the contention advanced by learned special counsel for the Department that MIMO does not by itself mean anything unless it is followed by the expressions 'technology' or 'products' and, therefore, since the exception carved out has to be 'goods', this expression has to be interpreted to connote products based on MIMO technology. 23. What needs to be remembered is that MIMO is a technology and cannot be treated as an independent product. If the intention was to exclude even products having only MIMO technology, then the word 'products' should have been used after MIMO as well as after LTE. It, therefore, follows that the scope of 'products' excluded by entry (iv) would be products which use both MIMO and LTE. Thus, the term 'Multiple Input/Multiple Output (MIMO) and Long Term Evolution (LTE) Products' means products which contain both MIMO and LTE. This view finds support from the following decisions. 24. In British Health Products, a Division Bench of the Tribunal held as follows: ....
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.... one person has rendered service as 'forwarding agent' without rendering any service as 'clearing agent' and he be deemed to have rendered both services would amount to replacing the conjunctive 'and' by a disjunctive which is not possible." (emphasis supplied) 26. A Division Bench of the Tribunal in Ingram Micro India in the matter of the appellant also confirmed the classification of identical product (i.e. WAP) under CTI 8517 62 90 and extended the benefit of the subsequent notification dated 30.07.2017. The Department has accepted the Order passed by the Tribunal. Therefore, once the benefit has been granted to Ingram Micro in the subsequent notification for an identical product, the benefit under the notification dated 01.03.2005, as amended on 11.07.2014 should also be extended to Ingram Micro.' 12. Having held that 'subscriber end equipment' was covered by tariff item 8517 6290 of First Schedule to Customs Tariff Act, 1975, the attempt by the adjudicating authority to shift 'wi-fi mesh extender', and solely by reference to the exemption notification, is not correct in law. Insofar as 'small form pluggable' is concerned, the decision of the Tribunal in re Reliance....