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TMI Blog2022 (10) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... registration of the application, the six concerned Principal Commissioner/Commissioner of Customs, viz. (i) Delhi Air Cargo, (ii) Bangalore Air Cargo, (iii) Chennai Air Cargo, (iv) Chennai Sea, (v) Nhava Sheva/JNCH Sea, and (vi) Mumbai Air cargo were requested vide letter dated 17-9-2021 to furnish their comments in the matter. The comments from all the six concerned Principal Commissioner/Commissioners have been received and discussed later in this order. 3. The applicant vide their written submissions dated 9-9-2021 have described the features and functionality of Fire TV Stick 4K. Max and possible CTH classification as under : 3.1 Features : Fire TV Stick 4K. Max is a network appliance and an entertainment device, also known as digital media receiver, designed to stream digital audio/video content via the internet. It is an HDMI digital media receiver designed to stream digital audio/video content to high-definition television. It connects to the HDMI port of a television. Once connected, the user gets access to television episodes and movies on Amazon Instant Video, Netflix, HBO NOW, and more via the internet. The user can also play games, music and download additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rformed by Fire TV Stick. Therefore, the essential character is given to the set by Fire TV stick only, and the set will be classifiable as per the classification of Fire TV stick. This view has also been endorsed by C.B.I. & C. vide Circular No. 1/2013-Cus., dated 1-1-2013, whereby it was clarified that the main device (i.e., the device which is to be controlled using the remote control) shall give the essential character to the set consisting of device & remote control. 3.3.2 As is evident from the features & functions of the Fire TV Stick (described in foregoing paras), the said device transmit/receive RF signals carrying the user's instructions, converts the same into a readable format & transmits the said instructions to the Amazon server. Once the request is processed in the server, the Fire TV Stick receives the results in RF signal format and transmits the same to the television to be displayed on the screen. Therefore, Fire TV Stick is a machine used for reception, conversion & transmission of data, classifiable under sub-heading 8517 62 90. Relevant Tariff Entry is being extracted below, for the ease of reference : CTH Description of Goods 8517 Telephone sets, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Commissioner of Customs (Audit), Zone-1, Mumbai to ASSPL on the issue of classification of earlier models of Fire TV Devices. In this regard, he has also mentioned that ASSPL vide Writ Petition No. WP/474/2020 approached the Hon'ble Bombay High Court seeking stay on adjudication of the SCN issued by the Commissioner of Customs (Audit), wherein Hon'ble High Court granted interim stay vide order dated 24-2-2020. He has therefore, submitted that as the issue of classification of earlier items are pending before the Commissioner of Customs (Audit), NCH, Mumbai-I, therefore, as per sub-section (2a) of Section 281 of Customs Act, 1962, it appears that application is liable for rejection. 4.2 On the issue of eligibility of the applicant and validity of the application, it is seen that ACC (Import), New Delhi and ACC (Import), Mumbai have stated that the applicant is eligible and the application is valid/nothing has come to its notice that the matter in applicant's case is pending before any officer of Customs, Appellate Tribunal or any Court or that the matter has already been decided by the Appellate Tribunal or any Court. 4.3 The applicant has cited reference to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the occasion to examine the said issue in my earlier ruling relating to the present application and the same group company with reference to the same SCN in Ruling No. CAAR/Del/Amazon/15/2021, dated 5-7-2021. It is seen that the first proviso Section 28-I(2) prescribes that the authority shall not allow the application where the question raised in the application is, - (a) already pending in the applicant's case before any officer of customs, the Appellate Tribunal or any Court; (b) same as in the matter is decided already by the Appellate Tribunal or any Court. Taking liberty to paraphrase the contention of the Commissioner of Customs, JNCH, I find his argument to be that since a SCN on the same matter has been issued to ASSPL (a group company of the Applicant), it would tantamount to question raised in the application being already pending before an officer of customs in the applicant's case. For this contention to be valid, it would imply that the distinction between ASSPL and the applicant, two independent legal entity, albeit group company, be ignored and they be treated as same. The fallacy of the intended contention of the Commissioner of Customs, JNCH is all too obvious. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es germane to its classification. I note that advance ruling has been sought on the classification of 'HDMI Digital Media Receiver [Model Number K2R2TE] with Alexa voice remote 3rd Generation Model No. L5B83G as a kit' (emphasis supplied), commonly known as Fire TV Stick 4K Max. No separate ruling has been sought in respect of classification of HDMI Digital Media Receiver [Model Number K2R2TE] and Alexa voice remote 3rd Generation Model No. L5B83G; and therefore, this ruling shall apply only to Fire TV Stick 4K Max as a kit. I agree with the contention of the applicant that the essential character of the device is determined by the HDMI Digital Media Receiver and the Alexa voice remote is meant only to operate the Digital Media Receiver. Therefore, following Rule 3(b) of the General Rules of Interpretation, the classification of Fire TV Stick 4K Max as a kit shall be determined by the classification of HDMI Digital Media Receiver [Model Number K2R2TE], 7. I observe that the applicant has claimed HDMI Digital Media Receiver [Model Number K2R2TE] to be classifiable under CTH 8517 62 90 since it is a device that transmits/receives RF signals and converts it into a format readabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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