Home Case Index All Cases Customs Customs + AT Customs - 2021 (10) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (10) TMI 392 - AT - CustomsClassification of the goods described in the Bills of Entry - eNodeB BTS/Micro Cell BTS/Femto Cells BTS/Pico Cells BTS - eNodeB, would be a Base Station in the 4G network? - Mis-declaration of goods or not - Whether the goods classifiable under CTH 8517 61 00, which is specific for ‘Base Stations’ or whether the goods are classifiable under the residuary CTH 8517 62 90 for ‘Other’? - extended period of limitation - HELD THAT:- It is seen that eNodeB is an evolved Base station of 4G Technology, which does not have the drawback of the Base Stations of 2G and 3G technology of having to communicate via a separate Controller owing to inability to communicate directly, which results in slowing down the speed of the connection. In that sense, the Base Stations of 4G Technology (digital signals) are at par with the Base Stations of 1G Technology (analog signals) in the sense that ‘Handover’ in both takes place at the Base Stations itself and not via a separate Controller. Merely because the Base Stations of 4G LTE have overcome the aforesaid drawback of the Base Stations of 2G and 3G technology, it cannot mean that eNodeB is not a Base Station. It cannot, therefore, be said that ‘Base Stations’ of 4G technology cannot be called ‘Base Stations’ because unlike Base Stations of 2G technology and 3G technology, it does not require a separate Controller - it cannot be urged that the Base Station of 4G technology is not a Base Station and cannot be classified under CTH 8517 61 00, which is specifically for ‘Base Stations’. The contention of the Department that the scope of CTH 8517 61 00 must be restricted and confined only to be Base Stations of the earlier 2G technology and 3G technology and that the said entry cannot cover an evolved Base Station of the new 4G technology cannot be accepted in view of the decision of the Supreme Court in COLLECTOR OF CUSTOMS & CENTRAL EX. VERSUS LEKHRAJ JESSUMAL & SONS [1996 (2) TMI 135 - SUPREME COURT]. The Supreme Court held that a Tariff entry cannot be given a static interpretation ignoring the evolution in technology. A perusal of Serial No. 372 (i) of the Notification dated 17.03.2012 would show that it grants exemption from the whole of customs duty of goods specified in List 17 required inter alia for cellular mobile telephone service. The said exemption is subject to condition no. 52, which requires that the importer should be licensed by the Department of Telecommunications of the Government of India for providing cellular mobile telephone service. There is no dispute that Reliance Jio satisfies condition no. 52. List 17 mentions ‘Base Transceiver Stations’ at Serial No. 3(a) and ‘Base Station Controllers’ at Serial No. 1(b). The said Notification was amended on 01.03.2016, by which in Serial No. 372 an insertion was made to the effect that notwithstanding anything contained in List 17, exemption shall not apply to specified goods of Heading 85.17, which, amongst others, included Long Term Evolution Products. Extended period of limitation - HELD THAT:- The assessment done by the importer under section 17(1) of the Customs Act is not conclusive but is subject to verification by the proper Officer under section 17(2) of the Central Act. If the proper Officer finds that self-assessment is incorrect, the proper Officer has to re-assess the goods under section 17(4) of the Customs Act. There is nothing on the record which may indicate that the proper Officer did not accept the self-assessment and carried out the re-assessment. Thus, also the benefit of the extended period of limitation could not have been invoked. The goods deserve to be classified under CTH 8517 61 00 as contended by Reliance Jio and not under CTH 8517 62 90 as contended by the Department. The impugned order dated 14.06.2019 passed by the Commissioner, therefore, to the extent it classifies the goods under CTH 8517 62 90 and consequential demand of differential duty w.e.f. 01.03.2016, cannot be sustained and is set aside - appeal allowed - decided in favor of appellant.
|