9911796707
TMI Blog2023 (2) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... cant, vide their communication dated 25-2-2021, informed that they are still interested in receiving the advance ruling and also that they will submit the application in the revised format in due course. Thereafter, the said application was e-mailed by the applicant in July, 2021, which was followed by physical submission of the application in August, 2021. 2. In the said application, the applicant has expressed their desire to import the subject goods through air cargo complexes of New Delhi, Mumbai, Chennai and Bengaluru as well as the sea ports of Chennai and Nhava Sheva, Raigad as envisaged under Section 28-I(1) of the Customs Act, 1962 read with the relevant regulations in force. 3. The comments of the aforesaid six Principal Commissioners/Commissioners of Customs in respect of the original application regarding classification of Fire TV Stick filed before the erstwhile AAR are on record. However, after receipt of fresh application in light of the Customs Authority for Advance Rulings Regulations, 2021, letters were again sent to the said Commissionerates. The comments, which were received from the Commissionerates, were further shared with the applicant. 4. The applicant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted out to the representative of the applicant that in the pending writ petition the erstwhile AAR was also a respondent, and therefore, no decision on pending advance ruling application is possible, unless the Hon'ble High Court finally disposes of the writ petition or the applicant withdraws the writ petition. 6. Sh. Lakshmi Kumaran stated that they will withdraw their writ petition before the Hon'ble High Court and inform the Secretariat of the CAAR, Mumbai. Subsequently, Vide Order No. CAAR/Mum/ARC/01/2021, dated 13-12-2021, the Secretary to the CAAR, Mumbai was directed to place this matter for decision only when one of the two scenarios outlined in the preceding paragraphs takes place. 7. Thereafter, the applicant informed the Secretariat of CAAR, Mumbai vide email dated 23-11-2022 enclosing therewith the final order of the Hon'ble Bombay High Court dated 9-11-2022 the disposal of a Writ Petition No. WP/474/2020, whereby the CAAR, Mumbai has been directed to decide the said application within twelve weeks. The Hon'ble Bombay High Court held : "By consent and keeping open all rights and contentions of the parties and in view of what is recorded by this Court in its order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cargo Complex, Sahar, Andheri (East), Mumbai (f) The Commissioner of Customs (Nhava Sheva -V), Jawaharlal Nehru Customs House, Nhava Sheva, Tal Uran, District Raigad, Maharashtra - 400707; 10. I observed that the comments were received from the jurisdictional Pr. Commissioners/Commissioners and the same were forwarded to the applicant for submitting the applicant's response. (a) Comments received from the Pr. Commissioner of Customs, ACC, Bengaluru has opined for the Fire TV stick to be classified under Tariff Heading 8528 73 90. They have supported their claim by stating that : "Fire TV Stick can be used only when it is connected to the HDMI port of the HD Television and the programmes can be viewed with internet connection via Wifi and programmes to be seen can be controlled with the remote, the product is rightly classifiable under Chapter Heading No. 8528 73 90 (Other), in view of the exclusion of the transmission or reception apparatus of heading 8528 in Chapter Heading 8517." (b) Comments received from the Pr. Commissioner of Customs, Chennai VII (Air Cargo Commissionerate), has suggested C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 517 69 60 does not appear to be the appropriate classification for the product. * 8517 62 90 (Machines for the reception, conversion and transmission or regeneration of voice, images or other data, including switching and routing apparatus-Other) : * Explanatory notes issued by WCO (World Customs Organization) for CTH 8517 states that it excludes apparatus for the transmission or reception of radio-broadcasting or television signals. * Wi-Fi frequency range is based on IEEE 802.11 protocol and is different from that of a television signal. * The catalogue states that the product is connected to the display device following which it allows the user to access data available on Netflix, Amazon Instant Video, HBO Now and Hulu Plus etc. * The product transmits the instructions sent by the user, converts them in the form readable by the system and on receipt of the output again transmits the same which is displayed on the screen. * Thus, it is essentially a media streamer which derives its input from Wi-Fi and converts data into a form which can he displayed on HDTV and it will start streaming in minutes. * Based on the above, CTH 8517 62 90 seems to be the most appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er CTH 8517. Section XVI covers all sorts of mechanical and electrical appliances/equipment etc. Chapters 84 and 85 come under section XVI. Chapter 85 of Schedule I to the Tariff Act covers various types of Electrical machinery and equipment including apparatus for transmission, reception and conversion of voice, images or other data. HSN Explanatory Notes to Chapter Heading 8517 provides that "These apparatus (apparatus for telegraphic communication other than, facsimile machines of heading 8443) are essentially designed for converting characters, graphics, images or other data into appropriate electrical impulses, for transmitting those impulses, and at the receiving end, receiving these impulses and converting them either into conventional symbols or indications representing the character, graphics, images or other data or into characters, graphics, images or other data themselves." Examples given for the same are apparatus for transmitting messages or apparatus for receiving messages. It is mentioned that in some cases, the receiver and the transmitter apparatus are combined into one receiver transmitter. The Fire TV Stick, however does not receive signals from satellite/cabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia receiver paired with two types of wireless remotes. Besides, the applicant has also sought rulings on classification of these two types of remotes separately. Therefore, before proceeding further, it is necessary to examine the functionalities of each of these three devices. The HDMI digital receiver has a 1.7 Ghz quad-core processor and 8 GB of storage. It has dual band 2x2 802.11 AC Wi-Fi with support for 5 GHz networks allowing streaming at up to 1080p at 60fps. The receiver provides HD/HDR support on compatible televisions. The HDMI digital media receiver is described by the applicant as network appliance and entertainment device for streaming digital audio/video content from the internet to television. A user sends instruction either by way of speech through inbuilt microphone in the remote or by pressing buttons on the remote. Such instructions are to select the programme/movie/any other media that the user wants to watch. The audio instructions are processed by Alexa Voice Services and are transmitted wirelessly in the form of radio frequency signals via Bluetooth to the HDMI digital media receiver which are transmitted to the Amazon server on cloud through internet. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the said entry is primarily suitable for receivers of television broadcast signals, whereas, the device under consideration does not receive signals from satellite/cable/terrestrial sources for display on television screens. Therefore, it is my considered opinion that the suggestion of the Ld. Commissioner is not tenable. I have also noticed that the Customs Authority for Advance Rulings, New Delhi, for the identical device, considered and rejected the sub-heading 8528 71 00 and held that digital media receiver discussed here is rightly classifiable under sub-heading 8517 62 90." 12. In the similar case of classification of identical device Fire TV Stick (Lite 1st Gen/3rd Gen) the Customs Authority for Advance Rulings, New Delhi vide its Ruling No. CAAR/Del/Amazon/15/2021, dated 5-7-2021, in case of application filed by Amazon Wholesale India Pvt. Ltd. [2021 (378) E.L.T. 391 (A.A.R. - Cus. - Del.)] considered and rejected the sub-heading 8528 71 00 and held that digital media receiver is rightly classifiable under sub-heading 8517 62 90. 13. I find that in order to decide present classification issue contending CTHs i.e. 8517 62 90 and 8528 71 00 are required to be examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." (I) xx xx xx (II) 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) (A) Base stations. (B) Entry-phone systems. (C) Videophones. (D) Apparatus for telegraphic communication other than facsimile machines of heading 84.43. These apparatuses are essentially designed for converting characters, graphics, images or other data into appropriate electrical impulses, for transmitting those impulses, and at the receiving end, receiving these impulses and converting them either into conventional symbols or indications representing the characters, graphics, images or other data or into the characters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this heading are also classified here. The heading also excludes : (a) Facsimile machines (heading 84.43). (b) Perforating machines, whether or not electric, used to perforate paper bands ready for use in automatic telegraphic apparatus (heading 84.72). (c) Induction coils for insertion in telephone or telegraph line circuits (heading 85.04). (d) Cells; batteries and accumulators (heading 85.06 or 85.07). (e) Telephone answering machines designed to operate with a telephone set but not forming an integral part of the set (headings 85.19). (f) Apparatus for the transmission or reception of radio-broadcasting or television signal (headings 85.25, 85.27 or 85.28). (g) Electric bells or indicators (e.g., luminous indicators operated by the dial of a telephone) (heading 8531). (h) Relays and switching equipment, such as selectors for automatic telephone exchanges, of heading 85.36. (ij) Insulated electric wire, cable, etc., as well as optical fibre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d convert them into a signal suitable for display. They may also incorporate a modem for connection to the Internet. These receivers are intended to be used with video recording or reproducing apparatus, monitors, projectors or televisions. However, devices which simply isolate high-frequency television signals (sometimes called video tuners) are to be classified as parts in heading 85.29. (2) Television receivers for industrial use (e.g., for reading instruments at a distance, or for observation in dangerous localities). With this apparatus the transmission is often by line. (3) Television receivers of all kinds (LCD, plasma, CRT, etc.) used in the home (television sets), whether or not incorporating a radio-broadcast receiver, video cassette recorder, DVD player, DVD recorder, satellite receiver, etc. 15. Rule (1) of the General Rules of Interpretation (GRI) states as follows. The titles of Sections, Chapters and Sub-Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note issued by WCO (World Customs Organization) for CTH 8517 states that it excludes apparatus for the transmission or reception of radio-broadcasting or television signals. It is established fact and also upheld in few Apex Court judgments that the HSN Explanatory Notes have persuasive value in deciding the classification matters under Customs Tariff Act, 1975. From technology perspective it was brought on record by respondent Commissionerate that the Wi-Fi frequency range is based on IEEE 802.11 protocol and is different from that of a television signal. The product transmits the instructions sent by the user, converts them in the form readable by the system and on receipt of the output again transmits the same which is displayed on the screen. Thus, it is essentially a media streamer which derives its input from Wi-Fi and converts data into a form which can be displayed on HDTV and it will start streaming in minutes. Based on these facts Commissionerate of Customs, Chennai-II has opined that the CTH 8517 62 90 seems to be the most appropriate classification for Amazon Fire TV Stick. The Fire TV Stick does not receive signals from satellite/cable/terrestrial to convert them in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issionerates have expressed divergent views on classification of Fire TV Stick. Pr. Commissionerate of Customs, ACC, Bengaluru has opined for the Fire TV stick to be classified under Tariff Heading 8528 73 90. They have supported their claim by stating that : "Fire TV Stick can be used only when it is connected to the HDMI port of the HD Television and the programmes can he viewed with internet connection via Wi-fi and programmes to be seen can be controlled with the remote, the product is rightly classifiable under Chapter Heading No. 85 28 73 90 (Other), in view of the exclusion of the transmission or reception apparatus of heading 8528 in Chapter Heading 8517." 15.6 Comments received from the Pr. Commissionerate of Customs, Chennai-VII (Air Cargo Commissionerate), has suggested CTH 8528 71 00 as a correct classification heading by stating that : "Fire TV Stick, is a portable device which connects to HDMI port of a television and thereafter the user get access to television episodes and movies and can also play games and music. Further, this product is supported with remote controller to change programmes. No other reception apparatus is required other than this product to v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reception, conversion and transmission or regeneration of voice, images or other data, including switching and routing apparatus' is a specific entry which satisfactorily encompasses the functions of the three networking devices under consideration. Therefore, Fire TV Stick merits classification under sub-heading 8517 62. 15.10 As per comments received from ACC, Bangalore, HSN explanatory notes exclude transmission or reception apparatus of Heading 8528 from Heading 8517. The HSN explanatory note states that "Apparatus for the transmission or reception of radio-broadcasting or television signals (Heading 85.25, 85.27 or 85.28)". However, the device under consideration is a streaming device, which uses the internet to provide on-demand content to its user. Therefore, they are not specified in the above-mentioned exclusion clause. 15.11 Based on foregoing discussion and analysis, the device Fire TV Stick, having been designed for reception, conversion and transmission of voice, images or other form of data through the internet and not through satellite/cable/terrestrial sources merits classification under six-digit Tariff Entry 8517 62. I do not see any reason for deviation fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
