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2015 (10) TMI 1287 - SUPREME COURT

2015 (10) TMI 1287 - SUPREME COURT - 2015 (324) E.L.T. 240 (SC) - Payment of Differential Duty Assessee imported imported 'Base Transreceiver Station (BTS) along with Antenna and Installation Cable Revenue contends that Serial No. 239 of Notification No. 21 of 2002 does not cover Antenna and installation cable so imported thus Appellant is liable to pay differential duty.

Held That:- Definition of BTS in Wiley Encyclopedia of Electrical and Electronics Engineering specifically men .....

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asad,Adv. And Mr. Anurag,Adv. For the Respondent : Mr. V. Lakshmikumaran,Adv., Mr. M. P. Devanath,Adv., Mr. S. Vasudevan,Adv., Ms. Disha Jain,Adv., Ms. L. Charanaya,Adv., Mr. Aditya Bhatacharya,Adv., Mr. Hemant Bajaj,Adv., Mr. Anandh K.,Adv. And Mr. Aman,Adv. ORDER The respondent/assessee herein which is engaged in the business of telecommunication system, imported what is known as 'Base Transreceiver Station (BTS) and Microwave Communication Equipments. In the present appeal, however, we ar .....

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e concerned, they are not covered by Serial No. 239 of Notification No. 21 of 2002 but no separate Bill of Entry was filed which attracts duty @ of 10%. On that basis, various show cause notices were served upon the assessee calling upon the assessee to pay differential rate of duty on the Antenna and installation cable. The assessee replied the same by contending that the Antenna as well as installation cable were integral parts of the BTS and were imported together under the same provisions an .....

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er of the Adjudicating Authority. Not satisfied with the outcome, the assessee preferred further appeals before the Customs, Excise & Service Tax Appellate Tribunal (CESTAT). The CESTAT has allowed the appeals of the assessee by a common decision dated 06.07.2005. Being aggrieved, the Revenue has filed this appeal challenging the veracity of the decision given by the CESTAT. Mr. Yashank Adhyaru, learned senior counsel appearing for the Revenue, took us through the various provisions of Notif .....

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Chapter Parts of goods specified in List 25, for the manufacture of goods falling under heading 85.41 or 85.42 5% 16% 5 317 8529.10 Aerials or antennae of a kind used with apparatus for radio-telephony and radio-telegraphy 10% - Entry No. 239 covers Chapter Headings 84,85 or 90 and the goods mentioned there are the one specified in List 22. These goods are meant for basic telephone service, cellular mobile telephone service, internet service etc. It is not in dispute that the goods in question .....

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, value added services via V-SAT system or Internet Service. Likewise, List 22 which mentions goods that are to be covered under Entry No. 239, annexed with the same Notification, reads as under: (1) Telephonic or telegraphic apparatus of the following description: (a) Switching apparatus for cellular mobile telephone service(b) Base station controllers (c) ATM Switches (d) Frame Relay Switches (e) Ethernet Switches (2) Apparatus for Carrier Current Line System or Digital Line System of the foll .....

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aters (ii) Amplifiers (iii) Wave Guides (4) Network management stations (5) Computers for billing and customer services (6) Short message service hardware (7) Automatic call distribution system (8) Transcoders (9) Test equipment. It was argued by Mr. Adhyaru that in List 22, the items which are mentioned do not include installation cable or other installation features. It was further submitted that as far as Antenna is concerned, it is specifically covered under Entry No. 317 that has already be .....

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d, intention of the Notification was clear viz. to extend the benefit only in respect of the main equipment and certain specified ancillary equipments, such as Antenna and installation materials that are used along with BTS equipments and not appearing in List 22, would not be covered by Serial No. 239 but would be covered under Serial No. 317. This reasoning has been negatived by the CESTAT in the impugned order. In this process, the Tribunal has defined the equipment BTS as appearing in variou .....

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nna and installation materials are part and parcel of the BTS, is perfectly justified. In the first instance, it is to be kept in mind that the BTS equipments which were imported by the assessee were along with the Antenna and installation materials. This is so noted and accepted by the Adjudicating Authority as well, inasmuch as the Order-in-Original itself records that the invoice was for the entire value of the consignments which included the value for Antenna and installation materials. It i .....

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k via the air interface. The base station system (BSS) includes a base station controller (BSC) and one or more base transceiver stations (BTS). The BSC manages radio channels on the radio interface and handovers. Radio transmission and reception devices, including antennas, and all radio interface signal processing are contained in the BTS. The BSS terminates the air interface from the mobile station and then connects the network signaling and user traffic to the mobile switching system over th .....

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