2006 (7) TMI 76 - AT - Central Excise

Manufacture The activity of erection of Base Transceiver Station and other equipment and connection of same by cable not amounts to manufacture Consequently no duty leivable

Summary

Issues:
1. Whether the transmission apparatus used by the appellants as Base Transceiver Station (BTS)/relay station for voice and data transmission is dutiable under Chapter Sub-heading 8525.00 of the Central Excise Tariff Act, 1985.
2. Whether the imposition of duty demand and penalties by the Commissioner on the appellants and individuals is justified.
3. Whether the Tribunal's previous decision in a similar case should be applied to the present case.

Issue 1:
The appellants were engaged in providing Cellular Mobile Telecom Services and used transmission apparatus as BTS/relay station. The apparatus was considered dutiable under Chapter Sub-heading 8525.00. The Commissioner confirmed duty demand and imposed penalties on the appellants and individuals. The appellants argued that a previous Tribunal decision in their own case and in the case of M/s. Reliance Infocom held that similar activities were not liable to duty. The Tribunal found that the issue was covered by its previous decision in the appellants' case and criticized the Commissioner for not considering the applicability of the order. The Tribunal set aside the Commissioner's order and allowed the appeals.

Issue 2:
The Commissioner had confirmed duty demand and imposed penalties on the appellants and individuals under various sections and rules. The appellants contended that the previous Tribunal decision in their case and in the case of M/s. Reliance Infocom supported their argument that the activities were not liable to duty. The Tribunal noted the Commissioner's failure to address the applicability of the previous order, deeming it as judicial indiscipline and a lack of application of mind. Consequently, the Tribunal set aside the Commissioner's order, implying that the imposition of duty demand and penalties was not justified.

Issue 3:
The Tribunal considered whether its previous decision in the appellants' case should be applied to the present matter. The appellants argued that the earlier decision held that activities similar to those in the present case were not dutiable. The Tribunal agreed with the appellants, stating that the issue was squarely covered by its previous decision and criticized the Commissioner for not acknowledging this fact. Consequently, the Tribunal set aside the Commissioner's order and allowed the appeals, indicating that the previous decision should indeed be applied to the present case.

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