TMI Blog2024 (1) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... e, may not be excluded from the scope of duty exemption benefit given at Serial No. 13 of the impugned notification as amended. The contention of the Department is that and in clause (iv) should be read as or so that it would cover MIMO products or LTE products as well. The contention advanced on behalf of Ingram Micro is that since the exclusion clause (iv) uses the conjunction and its scope would be restricted to those products that have both MIMO as well as LTE technology. Thus, a product that has only MIMO technology would be out of the scope of the exclusion clause and at Serial No. 13 (iv) of the impugned notification and should be available with the customs duty exemption benefit given under said notification. It is observed that in the Serial no. 13(iv) of the Notification No. 57/2017-Cus. as amended the word products is used only once. It is not used with Multiple Input/Multiple Output (MIMO) as well as Long Term Evolution (LTE). Whereas it is used once after both the products are being mentioned, same is not true for the other entries of the same notification. Products being the common factor for both, MIMO technology and LTE standard, again corroborates that expression a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Duty (hereinafter referred as BCD) exemption under Notification No. 24/2005-Cus. dated 01.03.2005 as was amended vide subsequent notification and thereby are evading payment of appropriate customs duties. As per the amended Notification No. 11/2014Cus., following products falling under CTH 8517 were not exempted from BCD payment: (i) soft switches and Voice over Internet Protocol (VoIP) 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 Product 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. All the above products are telecommunication or Information Communication Technology products. Those are the medium for communication / transfer of data, signs, signals, images or sounds by wire, radio, optical or other electromagnetic systems by using standard protocols. 1.2 As per the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LTE technology and the LTE technology products whether or not those have MIMO technology, are not eligible for duty exemption. Both these kind of products were excluded from the scope of exemption from payment of duty given to the products/goods of Chapter heading 8517. With these observations Show Cause Notice No. 38/2018 dated 08.10.2018 was served upon the appellants alleging that the products imported by the appellants fall under the exclusion to exemption of duty. Resultantly, the following total amount of duty was proposed to be recovered from the appellants along with interest and the proportional penalties: Name of the place of import Value of the imported APs (Rs.) Differential Duty payable (Rs.) ICD, Tuglakabad, New Delhi 411608582 48488057 Customs ACC, New Delhi 23053375 2567594 Nhava Sheva Port, Mumbai 7130873 813796 Customs ACC, Sahar Andheri (E), Mumbai 3288597 369967 Total 445081427 52239414 The said proposal has not been confirmed by the original adjudicating authority. Hence the department is in appeal pursuant to the Review Order No. 135/2019-20 dated 28.02.2020. 2. We have heard Shri Nagendra Yadav, learned Authorized Representative for the department-appellant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecifically for MIMO/MU-MIMO products. Therefore, these products will be covered under clause (h). The Importer is misrepresenting the clause (e) of Annexure 1 of the Circular 08/2023 wherein it is mentioned that Wi-Fi Access Point Equipment will be covered under the category Internet Protocol Radios to misguide the Tribunal despite having submitted during investigation that said devices are MIMO technology products. 3.2 It is submitted that Board has also accepted about the impugned goods be MIMO only and not LTE products. The claim of the Respondent appears to stem from a misinterpretation of the Board's Circular. The products covered under clause (e) Internet Protocol (IP) Radios are not products having MIMO technology because they have been mentioned separately under clause (e) in the Circular. All MIMO technology products are covered under clause (h) and not under clause (e). There is no dispute that the impugned goods imported by M/s. Go IP Global Services are MIMO products i.e. the Access Points imported have the presence of MIMO technology. Therefore, by virtue of the usage of the word include while describing the products in Column 3 of clause (h), it is to be construe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecording of statements. The request for crossexamination was allowed by ADG (Adj.), DRI, New Delhi, the adjudicating authority. Shri Adesh Vashisht and Shri Brijesh Shah were cross-examined on 04.04.19 but the other two persons did not appear despite being summoned twice by the adjudicating authority. The respondents furnished a reply dated 31.05.2019 to the show cause notice and raised a number of issues before the adjudicating authority on classification, eligibility to the exemption notification as also of time bar. Technical opinion from an expert was also filed before the adjudicating authority to substantiate the claim that the imported access points could not be considered as MIMO products. A plea was also raised in the reply to the show cause notice that the exclusion from exemption under Notification No. 24/2005-Cus dated 01.03.2005, as amended, was in respect of products based on MIMO and LTE, both the technology. Thus the access points were based on MIMO technology and those were not LTE products, those cannot be excluded from the exemption. 4.2 The said plea has rightly been accepted by the original adjudicating authority. The demand has rightly been dropped. There is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of the Table when imported into India, from the whole of the duty of customs leviable thereon. Serial No. 13 of heading 8517 exempts all goods, except those mentioned in (i), (ii), (iii) and (iv). Ingram Micro had claimed exemption under Serial No. 13 (iv) which is: (iv) Multiple Input/Multiple Output (MIMO) and Long Term Evolution (LTE) Products. 5.4 A bare perusal of the exclusion clause (iv) under Sl. No. 13 of notification shows that it covers MIMO and LTE products. Said exclusion Clause uses the conjunction and and, therefore, it can be urged that the scope of clause (iv) can be restricted to those products that have MIMO and LTE both and that the product that only has MIMO technology may, therefore, may not be excluded from the scope of duty exemption benefit given at Serial No. 13 of the impugned notification as amended. 5.5 The contention of the Department is that and in clause (iv) should be read as or so that it would cover MIMO products or LTE products as well. The contention advanced on behalf of Ingram Micro is that since the exclusion clause (iv) uses the conjunction and its scope would be restricted to those products that have both MIMO as well as LTE technology ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f construction is to be employed. Construction, in strict sense, is the process by which the court assign the meaning to the ambiguous provision which is beyond the letter of law for the purpose to resolve the inconsistency. The judges after taking into consideration the factual circumstances before the court give a particular meaning to the expression or word or phrase in question. Although, such meaning must be within the ambit of the objective of statute and could not be directly explained by the statute. The word interpretation and construction are used interchangeably but there is thin line of difference between both the concepts. Interpretation is the art of finding out the true sense of any form of words and enabling others to drive from them the same meaning which the author intended to convey, whereas, construction is the process of drawing conclusions, respecting subjects that lie beyond the direct expression of the text, which are in the spirit though not within the letter of law.[3] Basically, interpretation is a process of discovering, from permissible data, the meaning and intension of the legislature and if interpretation discloses clear meaning and intention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... azagaon Dock Ltd. v. CIT (1958) 34 ITR 368. By necessary intendment the expression a clearing and forwarding agent in relation to clearing and forwarding operations, in any manner contemplates only one person rendering service as clearing and forwarding agent in relation to clearing and forwarding operations . To say that if, one person has rendered service as forwarding agent without rendering any service as clearing agent and he be deemed to have rendered both services would amount to replacing the conjunctive and by a disjunctive which is not possible. 5.9 We also observe that in the Serial no. 13(iv) of the Notification No. 57/2017-Cus. as amended the word products is used only once. It is not used with Multiple Input/Multiple Output (MIMO) as well as Long Term Evolution (LTE). Whereas it is used once after both the products are being mentioned, same is not true for the other entries of the same notification. Products being the common factor for both, MIMO technology and LTE standard, again corroborates that expression and as used in the impugned entry has been used in a conjunctive way. From the above discussion we hold that and used between Multiple Input/Multiple Output (MIM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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