TMI Blog2022 (6) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of time. Learned Commissioner (Appeals) has been upholding the contention of the appellants. In one instance Revenue has accepted the order of Commissioner (Appeals). The Department has not drawn any samples and did not obtain technical opinion to support their claim that the impugned goods are complete machines or equipment capable of independent function themselves so as to merit classification under CTH 85176270. On the contrary, the respondents could demonstrate by technical literature; samples that the goods imported by them are Populated Circuit Boards (PCBs) used in PSS 1830 and therefore, the impugned goods are parts of PSS and as such merit classification CTH 85177010. Appeal dismissed - decided against Revenue. - Customs Appeal No. 88479 of 2018, 88483 of 2018, 88485 of 2018, 88487 of 2018, 88492 of 2018, 87032 of 2019, 87033 of 2019, 87034 of 2019, 87035 of 2019, 87036 of 2019, 87037 of 2019, 87038 of 2019 and 87039 of 2019 - A/85571-85583/2022 - Dated:- 22-6-2022 - MR. S.K. MOHANTY, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Ramesh Kumar, Authorized Representative for the Appellants Shri J. C. Patel, Vipin Jain and Shilpa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more messages in one or both directions over a single path, with separated signals is called Dense Wavelength Division Multiplexing (DWDM); he submits that some of the imported items are as follows:- (i) Optical Transponder or Card Transponder is a device which convert the wavelength as needed so that it can be loaded on a optical fiber without getting mixed with other signals on same optical fiber. Also mentioned as TXP. (ii) Optical Amplifier or Card Amplifier is a device which increase the strength of the optical signal. A typical fiber cable has loss of about 0.2dB per Km for 1.5 micro-meter light signal. Hence, the signal occurs loss of about 20db, if it travels a distance of 100 km. Therefore, the signal needs to be amplified in order to compensate for the losses at the regular intervals by way of Optical Amplifier . (iii) In optical fiber communications, a Muxponder (MXP) is the element that sends and receives the optical signal on a fiber in much the same way as a transponder except that the Muxponder has the additional functionality of multiplexing multiple sub-rate client interfaces onto the line interface. (iv) Other device are Optical Add-Drop M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifying the parts under CTH 8517 70 10 for the reason that these Cards have part numbers mentioned on them and therefore they cannot be called apparatus; even a small devices like keyboard, a mouse, printer, monitor etc, have part numbers and further reason they cannot be classified under Parts; as an example hard disk though functions along with CPU, when imported its classified under 8523 and not under 8473 which is meant for parts of data processing machine. He submits that appellants contention that they have imported PCBs is wrong; none of the documents describe in imported good as populated, loaded or stuffed printed circuit boards; the words Cards for Transponder/Muxponder were added in brackets only to mislead the authorities. 7. Shri J. C. Patel, Shri Vipin Jain and Ms. Shilpa Balani appeared on behalf of the appellants. Shri J. C. Patel learned Advocate submits that Photonic Service Switch 1830 is Dense Wave Division Multiplexor (DWDM) which combines optical signals of different wave lengths (colour)/ frequency for being carried simultaneously over a single optical fiber; the switches are used by the respondents in traffic originating locations for multiplexing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... headings 8473 3030 9027 90 20 specifically referred to mounted printed circuit boards and printed circuit assembly as part and not as machine or apparatus; similarly the very fact that while Notification No.57/2017-Cus dated 30.06.2017 mentions Optical Transport Equipments and Optical Transport Network (OTN) Products under Sr. No.20, but separately mentions Printed Circuit Assembly (PCBA) of Optical Transport Equipment and Optical Transport Network (OTN) Products, under Sr. No.22 as falling under CTH 8517 7010, is again a statutory recognition of the fact that Printed Circuit Assembly (PCBA) are not themselves complete Machine or Equipment, but are only parts of machine or equipment. 9. Learned Advocate further submits that impugned cards do not have any independent function to receive, convert and transmit or regenerate voice, images or other data; such functions are carried out by the machine i.e. DWDM equipment; it has been held in appellants own case reported at 2019 (369) ELT 1713, that in the absence of any evidence produced by the Department to establish that the goods in question are designed to function independently as a machine, the same cannot on standalo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tus of Heading 85.17 and instead are installed on a Computer of Heading 84.71. Network Interface Cards cannot therefore be classified as Parts under Heading 8517 70. Further, Network Interface Cards enable and allow a Computer to connect to a Network and are therefore in themselves Apparatus for transmission and reception of data between a Computer and a Network. Such is not the case with the Cards in the present case, which are incorporated in and are part of DWDM equipment. Therefore, the Cards of DWDM equipment cannot be classified as Apparatus for transmission and reception of data but are parts of DWDM equipment. 11. Learned Advocate further submits that the impugned goods are clearly eligible for exemption under serial no. 13S of notification no.24/2005-Cus dated 01.03.2005; the entry exempted all goods of heading 8517 70 10 except Printed Circuit Board Assembly (PCBA) of cellular mobile phones; understandably, the impugned goods are not PCBA of cellular mobile phones but are of DWDM equipment; the reference to notification no.11/2014-Cus dated 11.07.2014 by the Department has no relevance. He submits that India, as a signatory to the Information Technology Agreement date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - 8517 62 -- Machines for the reception, conversion and transmission or regeneration of voice, images or other data, including switching and routing apparatus : u Free 8517 62 10 --- PLCC equipment u Free - 8517 62 20 --- Voice frequency telegraphy u Free - 8517 62 30 --- Modems (modulators-demodulators) u Free - 8517 62 40 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered by the Tribunal in the case of Modicom Network Pvt. Ltd. 2005 (185) ELT 333 (Tri-Bang) and held that Para 6 .We find that the Main Switching Center consists of various modules in the form of PCBs. Each module will have its own function. The modules are all of standard format. There is a face plate on the front of each module with display elements, with controls and access to front connectors. The PCBs of the modules are of multi layer design and the components with which they are equipped are mainly surface mounted devices. The Main Switching Center is a machine with the provision for expansion. The modules are inserted as essential parts to attain a particular capacity. The modules on their own do not have any independent function and they cannot be dis-assembled further. Even though the numbers of modules are variable depending on capacity, each module remains as a part of the main machine, i.e. Main Switching Center. In view of the above, the Original Authority s finding that the modules cannot be considered as apparatus is correct. Hence there is no infirmity in the Order-in-Appeal confirming the Original order .. 14. Respondents in the case herein hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanation (G) the equipment referred to therein allowed for connection to a wired or wireless communication network or the transmission or reception of speech or other sound, images or other data within such networks. A look at this explanatory notes shows us the following. 85.17- Telephone sets, including telephones for cellular networks or for other wireless networks; other apparatus for the 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), other than transmission or reception apparatus of heading 84.43,85.25,85.27 or 85.28 (+). - Telephone sets, including telephones for cellular networks or for other wireless networks: 8517.11 - - Line telephone sets with cordless handsets 8517.12 - - Telephones for cellular networks or for other wireless networks 8517.18 --Other - 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): 8517.61 - - Base stations 8517.62 - - Machines for the reception, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Radio-telephony apparatus, including radio-telephony receivers, for motor vehicles, ships^ aircraft, trains, etc. (6) Portable receivers, usually battery operated, for example, portable receivers for calling, alerting or paging. (G) Other communication apparatus. This group includes apparatus which allows for the connection to a wired or wireless communication network or the transmission or reception of speech or other sounds, images or other data within such a network. Communication networks include, inter alia, carrier-current line systems, digital-line systems and combinations thereof. They may be configured, for example, as public switched telephone networks, Local Area Networks (LAN), Metropolitan Area Networks (MAN) and Wide Area Networks (WAN), whether proprietary or open architecture. This group includes :- (1) Network interface cards (e.g., Ethernet interface cards). (2) Modems (combined modulators-demodulators). (3) Routers, bridges, hubs, repeaters and channel to channel adaptors. (4) Multiplexers and related line equipment (e.g., transmitters, receivers or electro-optical converters). (5) Codecs (data co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s network, and parts classified under the said heading broadly placed under three categories of single dash (-). First single dash (-) for telephone sets, including telephones for cellular network or for other wireless network; second single dash (-) for other apparatus for transmission or reception of voice, images, or other data including apparatus for communication in wired or wireless network (such as local or wide area network); and the third single dash (-), for parts . The base station is classified under the second category under CSH 8517 61 00, to which neither side disputes. 42. Revenue, referring to the definition of machine prescribed under Note 5 of Section XVI classified the antenna for base station under second category, as machines for reception, conversion and transmission or regeneration of voice, images or other data including switching and routing apparatus. The Revenue s argument is based on the clarification issued by the Board on 1-1-2018 that antenna is an essential device of a wireless communication system; the information can travel only in the electromagnetic wave form. The antenna radiates the information in the form of electromagne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ething more than a passive element of receiving and sending electromagnetic waves when attached to a base station. The meaning of machine provided under Note 5 to Section XVI reads as : 5. For the purposes of these Notes, the expression machine means any machine, machinery, plant, equipment, apparatus or appliance in the headings of Chapter 84 or 85. The meaning of machine has to be understood in the context of Heading 8517. This is clear when we read the scope of Heading 8517 as explained under HSN which reads as follows :- This heading covers apparatus for the transmission or reception of speech or other sounds, images or other data between two points by variation of an electric current or optical wave flowing in a wired network or by electro-magnetic waves in a wireless network. The signal may be analogue or digital. The networks, which may be interconnected, include telephony, telegraphy, radio-telephony, radio-telegraphy, local and wide area networks. 45 . In the present case, the manufacturer of antenna as well as the chartered engineer s certificate, in clear terms clarified that the antenna in question transmits and receives only signals an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517; (c) all other parts are to be classified in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate or, failing that, in heading 8487 or 8548. 47. A simple analysis of Clause (a) of the above Note reveals that parts which are goods required to be classified in the respective headings; in the present case, Antenna being a part of the BTS, hence applying the said Rule, classifiable under Chapter Heading 8517. Revenue s interpretation of the said clause (a) in the present case is that in the event if the goods are not falling under any of the sub-heading of Heading 8517, then only it will be classifiable as parts , is incorrect. Clause (b) of the said Note 2 indicates that other parts , by implication which are not goods, if suitable for use solely or principally with a particular kind of machine of the same heading are to be classified with the machines of that kind or the headings mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
