TMI Blog2019 (2) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigate that when Commissioner (Appeal) had disallowed the benefit of this exemption, and matter was sub-judice before us, why the assessing authorities have allowed the benefit of the exemption in case similarly placed imported goods. Chief Commissioner of the concerned ports should cause an investigation in the matter if they deem fit. However the incorrect/ erroneous order of an authority cannot be binding precedent and reason for allowing the benefit to the appellant. Heading 851762 & 851769 are double dashed heading. The heading 851762, covers specific category of equipments and devices which is for reception, conversion and transmission or regeneration of voice, images or other data. The equipments under import are used for reception, conversion and transmission or regeneration of voice and video (images) and hence get classified under double dash heading 851762, and at triple dash under heading 85176290 - the classification as made by the department is justifiable. Appeal dismissed - decided against appellant. - APPLICATION No. C/Misc/85202/2018, APPEAL No. C/85097/2018 - A/85145/2019 - Dated:- 22-1-2019 - Mr. Ajay Sharma, Member (Judicial) And Mr. Sanjiv Srivasta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different from Video Conferencing System (Para 5) but ahs still rejected their appeal. ii. The Notification 24/2005-Cus (Sl No 13) excludes specific VOIP equipment namely VOIP phones, media gateways, gateway controller and session border controller. Entire VOIP Technology and hence Video Conferencing System are not excluded from the said Notification. iii. Commissioner (Appeal) failed to appreciate the opinion given by Professor Kannan Krishnamurthy of IIT Madras stating that no soft switch is used in the video Conferencing System and that the video Conferencing System is different from VOIP Phone although both use identical protocols. He had further clarified that Video Conferencing System is video and audio streaming system and certainly not an audio system like VOIP phone. iv. Even M/s Cisco Systems International BV Netherlands who are the manufacturers clarified that imported system is Video Conferencing System and not a VOIP phone/ equipment. v. Commissioner 9Appeal) has wrongly concluded that there is no difference between COIP Phone and Video Conferencing System. vi. Commissioner (Appeal) has failed to appreciate that simply because certain audio standards and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause in notification using the word namely should be strictly interpreted and only those which are specifically covered by the exclusion clause should only be excluded, as has been held by the Hon'ble Apex Court in case of Sree Durga Distributors. iii. Tribunal has in case of Heavy Engg Corpn Ltd [1990 (49) ELT 531 (T)] Tata Engg Locomotive Co Ltd [1998 (98 ELT 623 (T)] held that what are excluded from the scope of an expression in a legal provision are only those items mentioned specifically in the exclusion clause . iv. Expert Opinion of Shri Kannan Krishnamurthy IIT and the certificate issued by the manufacturer clearly states that the goods imported are not VOIP Phones. Thus they are not excluded from the said notification. v. Also by applying the trade parlance test, distinction between VOIP Phone and Video Conferencing System is evident. Thus in view of decisions in case of Plasmac Machine Mfg Co Pvt Ltd [1991 (51) ELT 161 (SC)], Novopan India Ltd [1994 (733) ELT 769 (SC)], Mukesh Kumar Aggarwal Co [2004 (178) ELT 3 (SC)] and Indian Aluminum Cables Ltd [1985 (21) ELT 3 (SC)] the benefit of exemption should not be denied to them vi. Hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii. Video Conferencing system is designed to transmit and receive audio video. This provides both audio and video connectivity to its users utilizing the standards and protocols of VOIP technology/ phone. iii. In terms of Note 3 to Section XVI, since the goods are designed to transmit audio and video, the same merit classification under heading 85176290. iv. The codec unit works to code/decode audio and video signals for communication from transmitting end to receiving end. The microphones within the camera is used to transmit the voices of the conference participants to a remote location, thus Video Conferencing System is nothing but a VOIP phone which are excluded from the scope of the said exemption of Sr No 13 of Notification No 24/2005 dated 01.03.2005. v. The contention of the appellant that VOIP phone is a single unit, but the Video Conferencing System consists of different devices like a monitor, camera, microphone and input device like key board does not mean much because all the devices that exist are part of every such system, in some case they are connected externally through system of wire and cables and in more miniaturized version housed in single body ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment of telecommunication of Government of India. The appellant is also directed to obtain such report/ certificate from a recognised Independent authority. e) In view of the above, TEC is of the opinion that Video Conferencing Equipment/Telepresence (model number CTS-SX20-PHD12-X-K9, brand manufacture M/s Cisco) is a VOIP Equipment used for point to point and/ or Point to Multipoint video conferencing using H,323/SIPVOIP in the same conference. This issue with the approval of competent authority. 5.3 Department of Telecommunication, Ministry of Telecommunications, has opined in respect of the imported goods namely Video Conferencing Equipment/ Telepresence (Model Number CTS-SX20-PHD12X-K9, brand manufacturer M/s Cisco) is a VOIP Equipment used for point to point and/ or Point to Multipoint Video Conferencing using H.323/SIP/VOIP in the same conference. 5.4 Appellants have also relied upon the opinion given by manufacturer and one Shri Kannan Krishnamurty, Executive Producer, Virtual Classrooms Video Productions, National Program on Technology Enhanced Learning, IC SR Building, third Floor, Data Centre, Indian Institute of Technology Madras, Chenn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g The Customs Notification clearly describes the goods covered therein as soft switches and Voice over Internet Protocol Equipment which indicates those equipments which are used in a system that uses a soft switch and VOIP Equipment. Very clearly in a Video Conferencing system there is no soft switch used in Video Conferencing only a Codec device is used for digital streaming of video and audio. 5.6 Entire essence of the argument advanced by the appellants is that the system imported by them comprises of Speakers, microphone, codec, camera and monitor. These taken together constitute the Video Conferencing System. The said argument do not advance the case of appellant's. Any system for audio and visual communication will have all these devices either inbuilt in one unit or built as a system of interconnected devices to perform the same function. The codec which in view of the appellants and in view of the opinion given by Shri Kannan, is a distinguishing feature is devoid of any merits. As per techterms.com Codec is short for coder-decoder. It is an algorithm used to encode data, such as an audio or video clip. The encoded data must be decoded when played b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. In our view, the basic premise on which the arguments of the assessee proceeds is that Entry 5 covers three categories of goods, namely, animal feed, feed supplements and feed supplements and mineral mixtures. This premise is wrong. A bare reading of the said entry indicates 'animal feed and feed supplements' as constituting one category. They are not two separate categories. The punctuation mark comma has been used expressly after the words animal feed and feed supplements , which indicates that the Legislature intended to classify these two items as one class/category. Further, the Legislature intended to restrict that category by confining that category to processed commodity alone and that too for certain named animals. In the present case, we are concerned with cat feed and dog feed. Cat feed carries a fishy smell on account of processing. However, cat feed though processed is not put in Entry 5. Similarly, dog feed is also excluded from Entry 5. In the circumstances, we do not find any merit in the arguments advanced on behalf of the assessee. 5.10 The issue before the Supreme court in the case of Sree Durga Distributors as evident from the para 3 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axing statute words which are not technical expressions or words of art, but are words of everyday use, must be understood and given a meaning, not in their technical or scientific sense, but in a sense as understood in common parlance i.e. that sense which people conversant with the subject-matter with which the statute is attribute to it . Such words must be understood in their 'popular sense'. The particular terms used by the legislature in the denomination of articles are to be understood according to the common, commercial understanding of those terms used and not in their scientific and technical sense for the legislature does not suppose our merchants to be naturalists or geologists or botanists . In this case to understand the imported goods the opinion of Department of Telecommunication, Ministry of Telecommunication, Government of India has been taken. It is on the basis the opinion given by them, we have held that the goods under importation are VOIP Equipment and not eligible to benefit of exemption. 5.13 In case of Favourite Industries [2012 (278) ELT 145 (SC)], Uttam Industries [2011 (265) ELT 14 (SC)] held that notifications need to be construed strict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K Chemicals [2007 (220) ELT 160 (T) and Damodar J Malpani [2002 (146) ELT 483 (SC)], claimed that the benefit of exemption should be allowed to them. The matter for consideration in the present case before us is in respect of the admissibility of the exemption notification in respect of the imported goods. We are in appeal adjudicating the matter in respect of a particular Bill of Entry and the goods sought to be imported against the said Bill of Entry. The benefit of exemption has been denied by the authorities below in respect of the goods sought to be cleared against specific bill of entry. On examination of facts we are of the view that authorities below have rightly denied the benefit of exemption. We are not bound by the orders/ view taken by the authorities below in respect of the subsequent Bill of entries. It is for the revenue authorities to investigate that when Commissioner (Appeal) had disallowed the benefit of this exemption, and matter was sub-judice before us, why the assessing authorities have allowed the benefit of the exemption in case similarly placed imported goods. Chief Commissioner of the concerned ports should cause an investigation in the matter if they de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course barring exceptional situations would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factu ..... 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