2006 (10) TMI 22 - AT - Central Excise

Cellular phones WLL CDMA Hand Held Terminals works on cellular technologies cateogarised it under Mobile phones and its features also support as mobile phones Eligible for benefit of Notification No. 6/2002 C.E. Demand ,interest and penalty not justified

Summary

Issues:
- Interpretation of exemption Notification No. 6/2002 Central Excise dated 1-3-2002 as amended by Notification No. 6/2003 Central Excise dated 1-3-2003 regarding the classification of WLL CDMA Hand Held Terminals under Sl. No. 264.
- Whether WLL CDMA Hand Held Terminals are entitled to the benefit of the exemption Notification covering "Cellular Phones and Radio Trunking Terminals."

Analysis:
The appeal was filed against an Order-in-Original by the Commissioner of Central Excise and Customs, Visakhapatnam-II, disputing the entitlement of WLL CDMA Hand Held Terminals for exemption under Notification No. 6/2002 Central Excise. The Department contended that the impugned goods were not covered under the exemption. The Adjudicating Authority confirmed a duty demand of Rs. 5,29,31,453/-, Educational Cess of Rs. 10,58,629/-, and imposed a penalty of Rs. 5,39,90,082/- under the Central Excise Act. The appellants challenged this order.

The appellants argued that the impugned goods fell under the exemption Notification as they operated on cellular technology and were mobile. They cited the case law of Bhagyanagar Metals Ltd. v. CCE, Goa and Tata Teleservices Ltd. v. CC to support their position. They highlighted that the impugned goods were covered under the Ministry of Finance circular. The Revenue reiterated the Order-in-Original during the proceedings.

The Tribunal analyzed the issue and referenced the Bhagyanagar Metals Ltd. case, holding that the term 'Cellular Phone' in the Notification covers all portable telephones based on cellular technology. The Tribunal also cited the Supreme Court's decision in Tata Teleservices case, emphasizing that circulars cannot impose limitations beyond the Notification's scope. The Tribunal concluded that the impugned goods, WLL CDMA Hand Held Terminals, were entitled to the exemption under the Notification. It noted that the Department failed to discharge the onus of proving otherwise, and the impugned order was set aside, allowing the appeal with consequential relief.

In the final decision, the Tribunal emphasized that the impugned goods were rightly classified under the exemption Notification as cellular phones based on the technology used. The Tribunal rejected the demand for duty, interest, and penalty, citing the precedents and legal interpretations provided in the case analysis.