TMI Blog2022 (2) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant is correctly classifiable under customs 85177090 as parts. Following this tribunal, it is held that the impugned order is not sustainable. The appeal is allowed - decided in favor of appellant. - Customs Appeal No. 41734 of 2019 - FINAL ORDER NO.40074 /2022 - Dated:- 18-2-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Vipin Jain, Advocate for the Appellant Shri. R. Rajaram, Assistant Commissioner (AR) for the Respondent ORDER The issue involved the present case is that whether the Antenna for base station imported by the appellant is classifiable as parts of base station under CTH 85177090 as claimed by the appellant or as machine/equipment for the reception, transmission and conversion of data under CTH 85176290 as claimed by the Revenue. 2. Shri Vipin Jain, learned Counsel appearing on behalf of the appellant at the outset submits that this very issue in the appellant s own case has been considered by this tribunal at Mumbai Bench reported at COMMISSIONER OF CUSTOM (IMPORT), MUMBAI VS. RELIANCE JIO INFOCOMM LTD 2019(369) ELT 1713 (Tri.- Mumbai) wherein the classification of antenna used for b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such request is made accordingly in filing their written submission to the Appeal. Majority of cases where appeals are filed by the assessee, the appeals are disposed of by the Commissioner (Appeals) after hearing the assessee after due notice to the department. In the present case, nothing has been brought on record to show that the Commissioner (Appeals) has deviated from the normal practice or rejected the request of adjournment of the department and proceeded by disposing the Appeal after hearing the Appellant in a biased manner without putting the department on notice about filing of the Appeal. Thus, in these circumstance, in our view, there is no violation of principles of natural justice in disposing the appeal by the learned Commissioner (appeals) by not adjourning the hearing suo motto for three times without any request for adjournment from the department in this regard. 36. The second preliminary objection raised by the Revenue is that since the duty has been paid under protest, the assessment is not final, therefore appeal against the assessment Order cannot lie before the Commissioner (Appeals). We do not find merit in the said contention of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 851719 -- Other u Free - --- Telephone sets u Free - 8517 19 11 ---- Push button type u Free - 8517 19 12 ---- Rotary dial type u Free - 8517 19 19 ---- Other u Free - 8517 19 20 --- Videophones u Free - - Facsimile machines and teleprinters: u Free - 8517 21 00 -- Facsimil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8517 50 93 ---- Routers u Free - 8517 50 94 ---- X25 pads u Free - 8517 50 99 ---- Other u Free - 8517 80 - Other apparatus: u Free - 8517 80 10 --- Attachments for telephones. u Free - 8517 80 20 --- Subscriber end equipment u Free - 8517 80 30 --- Set top boxes for gaining access to the Internet u Free - 8517 80 90 --- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - --- Two way radio communication equipment: u Free - 8525 20 11 ---- Walkie Talkie set u Free - 8525 20 12 ---- Cordless handset u Free - 8525 20 13 ---- Car telephone u Free - 8525 20 14 ---- Transportable telephone u Free - 8525 20 15 ---- Marine radio communication equipment u Free - 8525 20 16 ---- Amateur radio equipment u Free ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8527 19 00 -- Other u 12.5% - - Radio-broadcast receivers not capable of operating without an external source of power, of a kind used in motor vehicles, including apparatus capable of receiving also radio-telephony or radio-telegraphy: u 12.5% - 8527 21 00 -- Combined with sound recording or reproducing apparatus u 12.5% - 8527 29 00 -- Other u 12.5% - - Other radio-broadcast receivers, including apparatus capable of receiving also radio-telephony or radio-telegraphy: u 12.5% - 8527 31 00 -- Combined with sound recording or reproduci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 8529 10 19 ---- Other Kg 12.5% - --- Other aerials or antenna: Kg 12.5% - 8529 10 21 ---- For communication jamming equipment Kg 12.5% - 8529 10 22 ---- For amateur radio communication equipment Kg 12.5% - 8529 10 29 ---- Other Kg 12.5% - --- Other: Kg 12.5% - 8529 10 91 ---- For communication jamming equipment Kg 12.5% - 8529 10 92 ---- For amateur radio communication equipment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... --- Push button type u Free - 8517 12 90 --- Other u Free - 8517 18 - Other: u Free - 8517 18 10 --- Push button type u Free - 8517 18 90 --- Other u Free - - Other apparatus for transmission or reception of voice, images or other data, including apparatus for communication in a wired or wireless network (such as a local or wide area network): u Free - 8517 61 00 -- Base stations u Free ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - X 25 Pads u Free - 8517 69 50 --- Subscriber end equipment u Free - 8517 69 60 --- Set top boxes for gaining access to internet u Free - 8517 69 70 --- Attachments for telephones u Free - 8517 69 90 --- Other u Free - 8517 70 - Parts: u Free - 8517 70 10 -- Populated, loaded or stuffed printed circuit boards Kg Free - 8517 70 90 -- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icient and desired manner to the base station, where the information is picked up by the receiving antenna and passed on to the receiver via transmission line. The signal is de-modulated and the original message is then recovered at the receiver. Thus, the wireless communication gets established. It is the contention of the department that since the antenna can generate electro-magnetic wave from current and voltages and which can convert electromagnetic wave to current and voltages with these waves impinge on it, therefore, it can be considered as a machine, which independently receives and transmits electro-magnetic waves. 43. The Respondent s contention, on the other hand, is that the antenna is a passive element. It cannot function on its own unless connected to the base station, Therefore, the same does not fall within the scope and meaning of machine prescribed at Note 5 under Section XVI. 44 . In support of their contention that the Antenna imported for base station is a passive element, the Respondent placed on record the opinion of Vinod Gandhi Associates, Government registered Chartered Engineer. Also, they have placed a letter dt.12.11.2018 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rming any other function like conversion or regeneration of voice, images or other data signals and switching/routing of signals. Therefore, the Antenna stand alone cannot be considered as a machine , attracting classification under Heading 8517.62. Consequently, the observation of the Department in the circular dt.15.01.2018 that the Antenna itself is a complete device and has capability of functioning on its own of conversion of electrical signals into electro-magnetic waves and vice versa in a wireless communication system cannot be applied to the present goods as it would be complete only when connected to a base station. In the event if the Antenna so designed, instead of working as a passive element, besides the above function, it also performs some more functions as in the case of other entries under the same category, its classification under sub heading 851762 may be attracted, considering the same as an independent of machine . 46 . The Revenue s contention to classify the Antenna for base station under sub heading 851762 rests on the ground that as per note 2(a) of section XVI, parts which in themselves constitute an article covered by a heading of this s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause b as appropriate. Further, it is mentioned that parts which are equally suitable for use principally with the goods of heading 85.17 and headings of 8517 and 8525 to 8528 are to be classified as headings of 8517. Therefore, Antennas since parts of BTS, as held by Hon'ble Supreme Court in Hutchison Essar South Ltd. s case (supra), therefore, be classified as parts under 8517.7090. 48 . To resolve the issue about classification of Antenna for base station between the competing entries of 851762 and 851770 arose before the member countries, the HS Committee in 62nd session, after deliberation, recorded as follows:- No Product description Classification HS codes considered Classification rationale 22 Antenna for Base Station It is a directional dual-polarized plate antenna with a width of 0.3 m and a length of 1.4 m. The antenna works at 1.7-2.7 GHz frequency band and is part of a base station which plays a role as a core facility for mobile communication. Used in a mobile communicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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