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TMI Blog2019 (2) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... e to any other action that may be taken against the importer or any other person under Customs Act, 9162 or any other Act for time being in force in India." 2.1 Appellants had filed Bill of Entry No 7260501 dated 27.10.2016 for clearance of the goods declared as SX20 QUICK SET WITH 12 XPHDCAM, IMIC, REMOTE AND TC& SW, CTS-SX20-PHD12X-K9 (Video Conferencing System)" claiming their classification under CTH 85176990 and benefit of exemption under Notification No 24/2005-Cus (S No 13). 2.2 Revenue didn't agree with the classification as claimed by the appellant and proposed to classify them under CTH 85176290. It was also proposed to deny the benefit of exemption under Notification No 24/2005 (Sl No 13). 2.3 After taking into account the explanation offered by the appellant vide their letter dated 21.12.2016, Deputy Commissioner of Customs Group VA Air Cargo Complex Mumbai, adjudicated the matter classifying the goods imported under CTH 85176290 and denied the benefit of exemption under Notification No 24/2005-Cus (Sl No 13) by his order referred in para 1, supra. 24 Aggrieved by the order of Deputy Commissioner appellants filed the appeal before Commissioner (Appeal). The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court has in following case emphasized the importance of trade/ common understanding of the phrases used in the notification- a. Marico Industries Ltd [2016 (338) ELT 335 (SC)] b. Wockhardt Life Science Ltd [2012 (277) ELT 299 9SC)] c. Mukesh Kumar Aggarwal & Co [2004 (178) ELT 3 (SC)] d. Alpine Industries [2003 (152) ELT 16 (SC)] e. A Nagaraju Bros [1994 (72) ELT 801 (SC)] x. This 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 exclusion clause has to be construed strictly. If only VOIP Phone is excluded, then other products like Video Conferencing System not specifically enumerated in the exclusion clause cannot be excluded. xi. Commissioner has failed to appreciate that under Notification No 24/2005-Cus (Sl No 40) while components of VOIP phones are exempted components of Video Conferencing System are not exempted. 4.1 We have heard Shri Anil L Balani Learned Advocate for the Appellant and Shri R Kumar Assistant Commissioner (Authorized Representative) for the revenue 4.2 Arguing for the appellant learned advocate submitted- i. Benefit of the exemption under Notification is av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be denied to appellants. ix. From the structure of CTH 8517, it is evident that phones fall under heading 851711 to 851718, and apparatus other than phones are covered under headings 85176100 onwards. The goods in present case are held classifiable under heading no 85176290 i.e. other than phones and hence benefit of exemption should be available to these goods. x. He prayed that appeal should be allowed 4.3 Arguing for the revenue learned Authorized Representative submitted: i. Both VOIP Phone and Video Conferencing Systems are one and the same with respect to their functioning as both transmit data from one end to another over IP using the same protocols i.e. G711, G722 & G729. The similarities between the two can be enumerated as follows- a. Most of Audio standards, protocols and network requirements for the product in question are common to that of VOIP Phone for the delivery of voice communication and multimedia session over IP network. b. Network technology is common -H323 & SIP (Session Initiation Protocol). VOIP technology has not merely a voice over internet technology, but a technology which allows voice, video and other multimedia application on real time ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in respect of the goods imported by the appellant describing them as "Video Conferencing system". For ease of reference we reproduce the text of the said entry below: S N Heading or Subheading or tariff item Description 13 8517 All goods, except the following: (i) Soft switches and voice over internet protocol, equipment, namely VOIP Phones, media gateways, gateway controllers and session border controllers; (ii) Optical transport equipments, combination of one or more of packet optical transport products or switch (POTP or POTS), Optical Transport Network (OTN) products and IP Radios; (iii) Carrier Ethernet Switch, Packet Transport Node (PTN) products, Multiprotocol Label Switching Transport Profile (MPLS-TP) products; (iv) Multiple Input/ Multiple Output (MIMO) and Long Term Evolution (LTE (Products). 5.2 Looking into highly technical nature of dispute, the bench hearing the matter 02/04/2018 vide Order No I/14/18 dated 02/04/2018 ordered as follows: "3. We are of the view that being highly technical and specialized product, an expert opinion is required to arrive at a conclusion of the nature of the product. We, therefore, direct Revenue to obtain report from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticipants in the video conference, the screen every one sees will have 12 windows (which can be of various client defined sizes) with each participant in their own window. 5.5 Of the three opinions produced we are inclined to go with opinion given by Department of Telecommunications, Ministry of Communication, Government of India. The reasons for discarding the other two opinions are as follows: i. Opinion given by the manufacturer CISCO is nothing but description of the product. It is not giving any reasons for justifying that the said equipment do not qualify as "VOIP Equipment." ii. Opinion purported to be given by someone who is Executive Producer, Virtual Classroom & Video Productions National Program on Technology enhanced Learning, cannot be said to be given by someone who is an technical authority on the subject. The opinion where specifies as to qualifications and competence of the person giving the opinion. In absence of any such specifications about the person giving the opinion the said opinion do not inspire confidence iii. On page 9, Shri Kannan, even goes beyond the scope and ambit of the technical expert opinion and opines in respect of Custom Notification stati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using the word "namely", the notification has given exhaustive list of equipments to be excluded. Since what has been excluded is VOIP Phones, then all other VOIP Equipments should be covered by the said notification. In that case Hon'ble Apex Court has held as follows: "5. We do not find any merit in the arguments. The above quoted Entry 5 shows that animal feed and feed supplements is one category. It is after the expression "animal feed and feed supplements" that the Legislature has inserted the comma, therefore, animal feed and feed supplements constitute one class of products, they do not constitute two separate classes. Further, the expression "animal feed and feed supplements" is not only followed by the comma, it is followed by the word 'namely', which indicates that the items mentioned after the word 'namely' like poultry feed, cattle feed, pig feed, fish feed etc. are specific instances of animal feed and feed supplements, which would fall in Entry 5. That list is exhaustive. In that list, the Legislature has not included dog feed/cat feed, therefore, the products of the appellant do not fall under Entry 5 of the First Schedule of the Act. In our vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OIP Equipment" used in the notification should be restricted to "VOIP Phones" only because of the interconnecting word "namely" used in the notification. A plane reading of the entry "Soft switches and voice over internet protocol, equipment, namely VOIP Phones, media gateways, gateway controllers and session border controllers;" would clearly show that "VOIP Equipments" are excluded from the notification and if the intention of the Central Government issuing the said notification was to restrict the exclusion on to the "VOIP Phones", they would have not used the phrase "voice over internet protocol, equipment." It is settled law that any interpretation which renders the words and phrases used in a exemption notification redundant should be avoided. The Exemption Notification should be considered as a whole, so as to give meaning to every word and phrase used in the notification. 5.12 Appellants have relied upon various decisions with regards to trade understanding of the goods. There is no dispute or controversy in that regards. In case of Mukesh Kumar Aggarwal [2004 (178) ELT (3) SC], Hon'ble Supreme Court laid down the law stating "4.In a taxing statute words which are not tech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Company, supra. In said decision Hon'ble Apex Court has held- "52. To sum up, we answer the reference holding as under (1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/ assessee and it must be interpreted in favour of the revenue. (3) The ratio in Sun Export case (supra) is not correct and all the decisions which took similar view as in Sun Export Case (supra) stands overruled." 5.15 Appellants have submitted that the benefit of the said exemption has been allowed in respect of subsequent import of the same goods by made Chennai Customs, Delhi Customs & Mumbai Customs. They have also filed the produced the copy of Bill Of Entries in this regard. Thus on the basis of the benefit being allowed in case of subsequent imports, they relying on the decisions in case of RK Chemicals [2007 (220) ELT 160 (T) and Damodar J Malpani [2002 (146) ELT 483 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/ unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis or a of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stem (DLC) 8517 62 60 --- Synchronous digital hierarchy system (SDH) 8517 62 70 --- Multiplexers, statistical multiplexers 8517 62 90 --- Other 8517 69 -- Other: 8517 69 10 --- ISDN System 8517 69 20 --- ISDN terminal adaptor 8517 69 30 --- Routers 8517 69 40 --- X 25 Pads 8517 69 50 --- Subscriber end equipment 8517 69 60 --- Set top boxes for gaining internet access to internet 8517 69 70 --- Attachments for telephones 8517 69 90 --- Other 6.2 From the structure of heading we find that 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. In our view the classification as made by the department is justifiable. 7.1 We do not find any merits in the appeal filed by the appellant and dismiss the same, the miscellaneous application is also disposed off accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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