9911796707
TMI Blog2009 (5) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... gives the explanation that the computer includes CPU cleared separately, the Commissioner comes to the conclusion that the CPU cleared separately prior to this date would not be entitled for the exemption notification. Such reasoning is wrong. In our view this explanation is only clarificatory in nature and it will have retrospective effect in the light of the case laws submitted by the appellants. Consequently the impugned order has no merit and is liable to be set aside. - C/407/2008 - 1012/2009 - Dated:- 11-5-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) Shri B.V. Kumar, Advocate, for the Appellant. Shri V.P.C. Rao, SDR, for the Respondent. [Order per: T.K. Jayaraman, Member (T)]. - This appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of the Notification No. 6/2002-C.E., dated 1-3-2002 as amended. The Deputy Commissioner finalized the assessment of the Bills of Entry demanding differential duty of Rs. 2,34,47,332/-. The appellants were aggrieved over the finalization of the assessment, demanding duty denying the benefit of Notification. Therefore they approached the Commissioner (Appeals). The Commissioner (Appeals) passed the impugned order upholding the Order-in-Original dated 29-10-2007, passed by the Deputy Commissioner. The appellants were highly aggrieved over the impugned order. Therefore they have come before this Tribunal for relief. 4. The learned Advocate stated that the, servers imported are correctly classifiable under Chapter sub-heading 8471.50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar dated 30-11-1999 wherein the following clarification has been issued :- "2. The matter has been examined by the Board. It is observed that, Computers and computer network are covered under Heading 84.71 of Central Excise Tariff. A computer network can be defined as two or more computers and devices like printer or scanner among many computers and to share the information available on different computers. Network enables simultaneous work on different computers, which is coordinated by the father computer called "server". It also facilitates communication between two computers by different means..... Further our attention was invited to the proceedings of the Tariff Conference, held in 2006 wherein the following decision has been tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Tariff Conference and suggested that there is no ground to file an appeal against the said CESTAT Order in the Hon'ble Supreme Court. 4. In view of the above, it is submitted that CPU which does not contain HDD i.e. Server without storage unit like HDD is classifiable under sub-heading 8471.50. Therefore it is informed that the pending provisional assessments may be finalized early." Further the clarification given in C.B.E.C's Circular dated 15-6-2007 was also reproduced herein below:- "4. In view of the above, it is submitted that CPU which does not contain HDD i.e., Server without storage unit like HDD is classifiable under sub-heading 8471.50. Therefore it is informed that the pending provisional assessments may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 as amended by Notification No. 6/2003-C.E., dated 1-3-2003, reads as follows : Sl. No. Chapter/ Heading No./ Sub heading Description of Goods Rate of duty 261 84.71 Computer Explanation : For the purposes of this exemption, the value of computer shall be the value of the Computer excluding the value of Software pre-loaded on the computer, with or without an accompanying media. 16% Notification No. 6/2002-C.E., dated 1-3-2002 as amended by Notification No. 2/2004-C.E., dated 8-1-2004 and Serial No. 261, read as follows: Sl. No. Chapter/ Heading No./ Sub-heading Description of Goods Rate of duty 261 84. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the computer, with or without an accompanying media. So what is to be decided is whether the item imported can be treated as a computer. Even in the amending Notification of 9-7-2004, the explanation states - For the purpose of this exemption computer shall include CPU cleared separately or CPU with monitor mouse or key board. Therefore one cannot come to the conclusion that prior to this amendment, the CPU cleared separately is not entitled for the exemption on the ground that it is not a computer. Such reasoning is wrong. The only point to be noted is whether the imported item is a computer. The imported item is a server and there are several decisions which hold that the server is also a computer. It is nobody's case that the server is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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