TMI Blog2005 (12) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... 525-20-17 and by establishing that the imported goods could not reasonably be classified under any other head. In this particular case the onus had not been discharged by the Revenue. The only evidence on record was the opinion sought for by the Ministry of Finance itself and given by the Department of Telecommunications to the effect that the Model LSP 340 was in fact covered by the phrase "cellular telephone". Sine there is no dispute that the technology used in LSP 340 and the hand held mobile phone is the same there is no warrant to limit either the tariff entry or the exemption notification to hand held cellular phones. Neither the range nor the size would make any difference.Therefore, Civil Appeal Nos. 3774-3775/05 from the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board of Excise and Customs (CBE C) in clarification of the exemption notification. 2.Before we come to the contents of the circular, we may note the relevant entries in the Customs Tariff Act. Entry 8525-2017 refers to "Cellular Phones". The entry relied upon by the Revenue is Tariff Heading 8525-2019 as "Other". 3.The exemption notification granted exemption against serial No. 313 to "Cellular Phones and Radio trunking terminals" to the extent specified in the notification. The percentages of exemption have varied from time to time. However, the entry remains the same. 4.The circular issued by the Central Board of Excise and Customs defined the phrase "Cellular phones" mentioned at item No. 13 of the exemption notification by saying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lify as a cellular phone for the purposes of the exemption notification. The DOT had by a series of letters dated 12-3-2003, 16-4-2003 and 29-5-2003 written to the department concerned had stated that the LSP 340 was a cellular phone as it operated on cellular technology having the properties of both transreceiver and a telephone and that therefore, the items should be classified under the category "cellular phone" and covered under serial No. 313 of the exemption notification. The Tribunal did not consider this evidence at all. 6.When the same issue was raised before the CESTAT (Bombay), the Bombay Bench came to the conclusion that the circular sought to provide conditions to the notification and that this would tantamount to rewriting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is concerned the appellant is the Commissioner of Customs (Commissioner of Customs Central Excise v. Bhagyanagar Metals Ltd. CA. No. 7939 of 2004). As far as the appeals from the decision of the Andhra Pradesh are concerned, the appellant is the Government of India, (Government of India Ors. v. M/s. Surana Telecom Ltd. Anr. CA. No. 3774-3775 of 2005). There is also an application for intervention being IA. No. 2/2005 in CA. No. 7939/2004 by M/s. Teracom Private Ltd. 10.We are of the view that the reasoning of the Bombay Bench of the Tribunal as well as that of the Andhra Pradesh High Court must be affirmed and the decision of the Delhi Tribunal set aside insofar as it relates to the eligibility of the LSP 340 to the benefit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Telecommunications to the effect that the Model LSP 340 was in fact covered by the phrase "cellular telephone". Sine there is no dispute that the technology used in LSP 340 and the hand held mobile phone is the same there is no warrant to limit either the tariff entry or the exemption notification to hand held cellular phones. Neither the range nor the size would make any difference. 11.Therefore, Civil Appeal Nos. 3774-3775/05 from the decision of the Andhra Pradesh High Court is dismissed. As far as CA. No. 7939 of 2004 is concerned, the Commissioner, on the issue of valuation, had drawn a distinction between loaded software and detached software. The Commissioner had given certain reasons for including the software in the valuation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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