TMI Blog2023 (7) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... d be complete only when connected to a base station. In the event if the antenna so designed, instead of working as a passive element, besides the above function, it also performs some more functions as in the case of other entries under the same category, its classification under sub-heading 8517 62 may be attracted considering the same as an independent of 'machine'. The Revenue's contention to classify the 'antenna' for base station under sub-heading 8517 62 rests on the ground that as per Note 2(a) of Section XVI, parts which in themselves constitute an article covered by a heading of this section, in all cases are to be classified in their own appropriate heading even if specially designed to work as part of a specific machine. Further it is contended that Antenna is a part of a machine classifiable under Heading 8517, only in the situation when it is not covered by any other headings of the section - Since the same issue has been considered by the coordinate bench and the appeals filed by the revenue have been dismissed, this appeal also needs to be dismissed. The appeal filed by the revenue is dismissed. - HON BLE MR. SANJIV SRIVASTAVA, MEMBER ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27856 dtd 18. 5.2018, 6460162 dtd 21.05.2018, 6459522 dtd 21.05.2018, 6427836 dtd 18.05.2018, 6459748 dtd 21.05.2018, 6480465 dtd 22.05.2018 6480635 dtd 09.02.2018 Antenna with ACC (Parts of telecommunication equipments) 85177090 85176290 2.2 The speaking orders issued under Section 17(5) of the Custom Act, 1962, reassessing the imported goods as stated in table above were challenged by the respondents before the Commissioner (Appeal) who by the impugned order, referred in para 1 above allowed the appeals and upheld the classification as claimed by the importers while filing the Bill of Entries. 2.3 Aggrieved revenue has filed this appeal. 3.1 We have heard Shri Ramesh Kumar, Assistant Commissioner, Authorized Representative for the revenue (Appellant) and Shri T Viswanathan and Akhilesh Kangsiya, Advocates for the Respondent. 3.1 Arguing for the Appellant, learned Authorized Representative reiterated the grounds taken in the appeal filed by the revenue From the Datasheets of the said Base Station Antennas it is evident that the said Antennas are integrated antennas with accessories having remote elect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Note 2 to section XVI of the First Schedule to the Customs Tariff Act reads as under: Subject to Note 1 to this section, Note 1 to chapter 84 and Note 1 to Chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8546 or 8547) are to be classified according to the following rules as: (a) Parts which are goods included in any of the headings of Chapter 84 or Chapter 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538 and 8548) are in all cases to be classified in their respective headings: (b) Other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517. (c) All other parts are to be classified in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate or, failing that, in heading 8487 or 8548 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows for the connection to a wired or wireless communication network (such as a LAN or WAN' and is therefore appropriately covered under the single dash entry of heading 8517 pertaining to 'Other apparatus.......including apparatus for communication in a wired or wireless network (such as a local or wide area network'. It has been held in the Order-in-Appeal that the imported antennas are passive and not a machine. It has also been held that the said antennas are not an apparatus and cannot function on its own unless connected to equipment/ apparatus/ device. In this regard it is reiterated that as far as classification of the imported goods is concerned it is pertinent to mention that the terms of the headings and any relative Section or Chapter Notes are paramount, i.e., they are the first consideration in determining classification. It is apparent that the single dash entry under heading 8517 pertaining to apparatus for communication in a wired or wireless network (such as a local or wide area network does not specify the passive or active nature of the apparatus which allows for the connection to a wired or wireless communication network and the Notes to the HS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held by Commissioner (Appeals) that the decision of HS Committee of WCO, classifying the antenna for Base Station under HS Code 8517.70, cannot be brushed aside lightly. In this regard it is reiterated that the terms of the headings and any relative Section or Chapter Notes are paramount, i.e., they are the first consideration in determining classification of the goods. It remains a fact that apparatus for communication in a wired or wireless network (such as a local or wide area network) and thereby apparatus which allows for the connection to a wired or wireless communication network are covered under the single dash entry of heading 8517. In the given circumstances it is apparent that the terms of the headings and any relative Section or Chapter Notes would prevail over any other decision. The decision of the Hon'ble Tribunal in case of M/s Reliance Jio Infocom Ltd [2019 (369) ELT 1713 (Tri-Mum)] relied upon by the respondent s counsels has been appealed against by Revenue and the appeal has been admitted. 3.3 Arguing for the respondent learned counsels submitted that: The imported 'Passive Antenna' have universal application in all cellular technology ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in detail and have arrived at the classification of the said goods. The observations made by the Commissioner (Appeals) find support from the decision of coordinate bench in the case of Reliance Jio Infocomm referred earlier. Commissioner (Appeals) determined the classification of impugned goods contrary to instructions issued by the Board as per instruction No 01/2018-Cus dated 15.01.2018. In paragraph 13, recording his reasons for differing, he observes as follows: 13. The original authority (OA) in the impugned order has simply quoted the CBIC circular number 01/2018 (Instruction) dated 15.01.2018 and just mentioned one sentence regarding his findings on the issue as I find the explanation provided by the aforementioned CBI instructions circular number 1/2018 Cus dated 15.01.2018 is self explanatory in nature. So saying the adjudicating authority has rejected the declared classification under the tariff item 85177090 and re-determined under tariff item 85176290. The OA has not given any specific finding on the submissions made by the appellants to canvass their standpoint. the quasi-judicial authorities are expected to independently apply their mind to the case, consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent seeking adjournment on the ground of personal difficulty, list the matter after two weeks. Rejoinder filed by the petitioner is taken on record. From the above it is observed that neither the appeal has been admitted by the Hon ble Apex Court nor any stay granted by the court. In view of the above we are not inclined to agree with the submissions made by the authorized representative to adjourn the matter till the decision of Hon ble Apex Court in the Civil Appeal Diary No 14979/2020. 4.5 The issue was again considered by the tribunal in case of Reliance Jio Infocomm vide the order reported at [2022- TIOL- 604-CESTAT-Mum] and the bench dismissed the appeals filed by revenue sating as follows: 17. We also find that Revenue submits that on the basis of Explanatory notes to the HSN the items are complete machines or equipments classifiable under CTH 85176270. The Department submits alluding to the HSN that as per explanation (G) the equipment referred to therein allowed for connection to a wired or wireless communication network or the transmission or reception of speech or other sound, images or other data within such networks. A look at this explana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d transmission of speech, other sounds, characters, graphics, images or other data. .. (F) Transmitting and receiving apparatus for radio-telephony and radiotelegraphy. This group includes: (1) Fixed apparatus for radio-telephony and radio-telegraphy (transmitters, receivers and transmitter-receivers). Certain types, used mainly in large installations, include special devices such as secrecy devices (e.g., spectrum inverters), multiplex devices (used for sending more than two messages simultaneously) and certain receivers, termed diversity receivers , using multiple receiver technique to overcome Fading. (2) Radio transmitters and radio receivers for simultaneous interpretation at multilingual Conferences. (3) Automatic transmitters and special receivers for distress signals from ships, aircraft, etc. (4) Transmitters, receivers or transmitter/receivers of telemetric signals. (5) Radio-telephony apparatus, including radio-telephony receivers, for motor vehicles, ships aircraft, trains, etc. (6) Portable receivers, usually battery operated, for example, portable receivers for calling, alerting or paging. (G) Other communication app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the respondent the Network Interface Cards referred to in the notes are not PCB of any transmission or reception apparatus of heading 8517. Network Interface Cards connect the computers to the internet and therefore can be considered to have independent function. Going by the product literature and our discussions as above, we find that the impugned cards are incorporated in and or parts of DWDM equipments. 19. We find that this Bench has gone into the issue of classification of parts or equipment while dealing with the classification of antennas imported by the very same respondent case. This Bench observed that Now, a simple analysis of Heading 8517 effective from 1-1- 2007, it is clear that the instruments/telephone sets for cellular networks/wireless net works, apparatus both for transmission and reception of voice, images or other data in a wired or wireless network, and parts classified under the said heading broadly placed under three categories of single dash (-). First single dash (-) for telephone sets, including telephones for cellular network or for other wireless network; second single dash (-) for 'other apparatus for transmission or reception of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it only transmits and receives only the signals. It is further stated that the antenna is not performing in any other functions like conversion or regeneration of voice, images or other data signals or switching and/or routing of signals. No technical literature has been placed by the Revenue in support of their contention that the imported antenna for base stations are designed to function independently as a machine, contrary to the claim of the Respondent that these are passive elements and can function only when attached to the base station for receiving and sending signals. The Revenue has placed the general information available on net about the multi fold use of e node antenna in 4G 5G network in the developed wireless cellular technology. Comparing the data placed on the imported goods, we find merit in the contention of the Learned Advocate for the appellant that to be antenna as machine, it needs to be something more than a passive element of receiving and sending electromagnetic waves when attached to a base station. The meaning of 'machine' provided under Note 5 to Section XVI reads as : 5. For the purposes of these Notes, the expression machine means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 8517, only in the situation when it is not covered by any other headings of the section. As per department, since it is classifiable under 8517 62, hence, not to be considered under sub-heading8517 70 as 'parts'. The said Chapter note reads as follows : 2. Subject to Note 1 to this Section, Note 1 to Chapter 84 and to Note 1 to Chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules : (a) parts which are goods included in any of the headings of Chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538, and 8548) are in all cases to be classified in their respective headings; (b) other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Accordingly, we hold that I.O. Modules and Chassis are classified as parts and accessories of Automatic Regulating or Controlling Instrument/Apparatus under CTH 9032.90.00. 20. In view of the above, we find that the Department could not support their contention. No technical literature was submitted; in spite of the fact that the imports have been taking place over a period of time. Learned Commissioner (Appeals) has been upholding the contention of the appellants. In one instance Revenue has accepted the order of Commissioner (Appeals). We find that the Department has not drawn any samples and did not obtain technical opinion to support their claim that the impugned goods are complete machines or equipment capable of independent function themselves so as to merit classification under CTH 85176270. On the contrary, the respondents could demonstrate by technical literature; samples and the ratio of judgments cited above that the goods imported by them are Populated Circuit Boards (PCBs) used in PSS 1830 and therefore, the impugned goods are parts of PSS and as such merit classification CTH 85177010. We also find that the appellants have submitted US Customs Rulings on the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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