2019 (6) TMI 114 - AT - Customs

Classification of imported goods - Fortinet Secured Indore Wireless access point - appellant claims bonafide impression - Whether the Fortinet Secured Indore Wireless access point, the impugned goods, required a licence from Wireless Planning and Coordination Wing of Ministry of Telecommunication i.e. a WPC licence? - HELD THAT - Though vide latest clarification of DGFT dated 16 April 2019 there is a mention that no separate licence is required from WPC Wing but the said clarification being a post-event than the holding of the impugned goods, we are of the opinion that the same cannot be given retrospective effect. The appellant though has contended that the item as have been held no more require the WPC licence, as being same as that of the goods, mentioned in letter dated 16 April 2019 the benefit may be extended to the appellant also. Keeping in view the said contention but simultaneously the above observations that at the relevant time, the WPC licence was required for wireless products. Also observing that the orders of the authorities below were solely based on a public notice and that we are not the technical person to appreciate the applicability of the clearances to the specifications of the impugned goods. It is deemed appropriate that the samples from the impugned consignment be sent to the Wireless Planning and Coordination Wing of Ministry of Telecommunication. The department shall be giving random four samples to WPC within 15 days of this order. WPC in 15 days thereafter, that is after receiving the said samples, shall give a technical report about the specifications of the impugned goods with a clear finding of the necessity of the WPC licence for the import of the said item at the relevant time. Appeal allowed by way of remand.

Issues:
Classification of impugned goods under Central Tariff Headings, requirement of licence from Wireless Planning and Coordination Wing, imposition of redemption fine and penalty under Customs Act, validity of remand order by Commissioner (Appeals), necessity of Wireless Planning and Coordination Wing licence for wireless equipment, interpretation of notifications and clarifications by Department of Commerce and Directorate General of Foreign Trade, retrospective effect of clarifications, need for technical report from Wireless Planning and Coordination Wing, competence of Commissioner (Appeals) to order re-adjudication.

Analysis:

1. Classification of impugned goods under Central Tariff Headings: The appellant imported various items of network security appliances, power supply, and access points, classified under Central Tariff Headings. The department required a licence from Wireless Planning and Coordination Wing for clearance, leading to the impugned goods being held by the authorities.

2. Requirement of licence from Wireless Planning and Coordination Wing: The appellant argued that the impugned goods were freely importable based on clarifications from the Department of Telecommunication and Directorate General of Foreign Trade. However, the department contended that wireless equipment like the impugned goods mandatorily required licences from WPC, which the appellant failed to produce, leading to the original Adjudicating Authority's decision against the appellant.

3. Imposition of redemption fine and penalty under Customs Act: The Adjudicating Authority imposed a redemption fine and penalty on the appellant for failing to produce the required licence. The appellant appealed this decision, leading to the matter being remanded back to the original Adjudicating Authority for a fresh decision.

4. Validity of remand order by Commissioner (Appeals): The appellant challenged the remand order, arguing that it was beyond the scope of the Customs Act. However, the department defended the remand, stating that it was permissible under the relevant provisions. The Tribunal found no infirmity in the remand order, emphasizing the importance of providing a proper opportunity of being heard.

5. Necessity of Wireless Planning and Coordination Wing licence for wireless equipment: The Tribunal examined various notifications and clarifications regarding the import of wireless products. While some documents indicated that certain wireless items were freely importable, they also highlighted the requirement for a WPC licence. The Tribunal emphasized the need for a technical report from WPC to determine the necessity of the licence for the impugned goods.

6. Interpretation of notifications and clarifications by Department of Commerce and Directorate General of Foreign Trade: The Tribunal analyzed the notifications and clarifications issued by relevant authorities to ascertain the import requirements for wireless products. It noted that while some items were exempt from licensing, the specific nature of the impugned goods required further verification.

7. Retrospective effect of clarifications: The Tribunal considered the appellant's argument for retrospective application of a clarification issued after the impugned goods were held. However, it concluded that the clarification could not be applied retrospectively, emphasizing the need to assess the import requirements at the relevant time.

8. Need for technical report from Wireless Planning and Coordination Wing: To resolve the issue of the WPC licence requirement, the Tribunal ordered the submission of samples to WPC for a technical report. The report would form the basis for the original Adjudicating Authority to re-adjudicate the matter, ensuring a fair assessment based on technical specifications.

9. Competence of Commissioner (Appeals) to order re-adjudication: The Tribunal clarified that the Commissioner (Appeals) had the authority to order re-adjudication by the original Adjudicating Authority. It directed the Adjudicating Authority to provide a copy of the technical report to the appellant and make a decision after giving the appellant a due opportunity to be heard.

Overall, the Tribunal allowed the appeal by way of remand, highlighting the importance of technical verification in determining the necessity of a WPC licence for the impugned goods, ensuring a fair and informed decision in the matter.

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