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2019 (4) TMI 915 - AT - CustomsClassification of imported goods - whether classifiable as ADP machine or as a mobile telephone under CTH 85171290? - Confiscation - labelling of consignments as per N/N. 44 (RE-2000)/1997=2002 dated the 24th November, 2000 issued by DGFT - Held that:- The item imported, is more suited for the purpose of working/ reading rather than for the purpose of telephony, specifically as a mobile device - I am unable to make out how convenient it would be to use the device while holding the same against ear as a mobile telephone. Further the imported item admittedly is without an earpiece, which would make it impossible to use the same for conversation. The findings recorded by the Commissioner for ignoring the size of the item imported and trade parlance/ understanding of the same cannot be sustained. The applicability of the circular relied upon by the Commissioner has to be determined after taking into account the size/ dimensions of the imported item and also the trade/ parlance understanding of the same. The order of Commissioner has been passed without application of mind. In the entire order he goes on rejecting the contentions raised by the respondents for claiming classification under CTH 8517 but finally decides the classification as claimed by them. He has failed to consider the manner in which the respondents have positioned themselves in the market vis a vis the imported item. In their own literature, they describe the products stating “Tablet with support for GSM voice communication, SMS and MMS”. Thus respondents have entered the market describing the product as Tablet with support for GSM voice Communication. In our view this is enough to hold that voice communication is secondary function to the Tablet functions. When the respondents themselves hold that Tablet function is predominant, any finding rendered by the Commissioner to the contrary cannot survive. The order of Commissioner is set aside and the matter is remanded back to the adjudicating authority for fresh consideration of issue of classification and all the other associated issues - appeal allowed by way of remand.
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