2007 (4) TMI 472 - AT - Central Excise

Summary

Issues:
Waiver of pre-deposit of Central Excise duty, penalty, and interest; classification of CDMA WLL telephones for duty exemption; import of parts and accessories for CDMA WLL telephones without duty payment.

Analysis:
1. Waiver of Pre-deposit: The Tribunal considered the applications for waiver of pre-deposit of Central Excise duty, education cess, interest, and penalties totaling a significant amount against the assessee and its general manager-operations. The demand arose due to the non-exemption of duty for specific CDMA WLL telephone models and import of components without duty payment. The Tribunal granted a waiver of pre-deposit and stayed the recovery during the appeal process.

2. Classification of CDMA WLL Telephones: The dispute centered around the classification of two CDMA WLL telephone models for duty exemption. The Commissioner relied on BSNL advertisements and a TDSAT decision related to Tata Teleservices Ltd., but the Tribunal found these references not directly relevant. The applicants presented certificates and opinions supporting that the telephones in question worked on cellular communication technology, thus qualifying as cellular phones eligible for duty exemption under relevant notifications. The Tribunal applied the Supreme Court decision in Tata Teleservices Ltd. v. CC to support the prima facie classification of the telephones as cellular phones, warranting exemption from Customs and excise duty.

3. Import of Parts and Accessories: The Customs duty demand arose from the import of parts, components, and accessories without duty payment for the manufacture of the CDMA WLL telephone models. The Tribunal found that the applicants failed to prove that the telephones were cellular phones, leading to the denial of duty exemption. However, based on the evidence presented regarding the technology used in the telephones, the Tribunal waived the pre-deposit of duties and penalties confirmed against the applicants, staying the recovery during the appeal proceedings.

In conclusion, the Tribunal granted a waiver of pre-deposit for the substantial duty, penalty, and interest amounts, considering the classification of the CDMA WLL telephones as cellular phones eligible for duty exemption under relevant notifications. The Tribunal emphasized the technological aspect and evidence presented by the applicants to support the waiver decision and stay the recovery of dues during the appeal process.