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TMI Blog2009 (5) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... iod department itself unsure of classification and advising assessee at different time to classify impugned goods under different headings, thus invocation of extended period found to be improper u/s 28 of Custom Act, 1962. - C/378/2006 - C/Misc./260/2007 - 689/2009 and Misc. Order No. 310/2009 - Dated:- 29-5-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) S/Shri S. Jaikumar , Advocate and K.S. Ramesh, Consultant, for the Appellant. Shri V.P.C. Rao, JDR, for the Respondent. [Order per: T.K. Jayaraman, Member (T)]. - This appeal has been filed against the Order-in-Original No. 11/2006-Cus., dated, 17-5-2006 passed by the Commissioner of Customs Central Excise, Hyderabad. 2. A misc. application for additional evidence was also filed. However, at the time of hearing on 10-2-2009, the same was withdrawn by the appellant. Hence, the misc. application is dismissed as withdrawn. 3. We heard both sides. 4. The appellants' are manufacturers of PCO Monitors, EPABX and Payphone of various models. They imported a consignment of 2000 Nos. of Wireless Standard Module (WISMO) GSM Quick Module (Q2403 A) and declared them as 'Parts of Electronic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product manufactured or downloaded from the internet it was revealed that the product is not used solely or principally in the manufacture of PCOs. He has considered the classification of the item under Chapter 8517.90, which relates to 'Electrical apparatus for line telephone or line telegraphy'. Based on the opinion dated 13-1-2005, furnished by Shri D. Madhusudhanan, General Manager of ECIL, the Commissioner held that the goods are classifiable under CSH 85.17 and no exemption claimed by the appellant would be applicable to them under Entry No. 321 of the Notification 05/2004. The reason is that the goods are actually populated PCBs. If they are populated PCBs, the effect would be to exclude the goods from the benefit of exemption under Entry No. 321 of Notification 5/2004. Consequently, the Commissioner has held that the goods are classifiable under 851790 with applicable rate of duty at Sl. No. 359 of Notification No. 05/2004-Cus., dated 8-1-2004. He confirmed the demand of duty of Rs.2,46,45,280/- under proviso to Section 28A of the Customs Act. An amount of Rs.1,92,65,325/- already paid by them is adjusted. He confiscated 2000 WISMO Modules valued at Rs.46,6,5,359/- under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. In the case of a GSM PCO, when the subscriber makes a call, he connects to the mobile switching making use of those WISMO, which is present inside the equipment. The Micro controller, which is also a part of the equipment, establishes a connection between the mobile instrument and the GSM WISMO Module. Then the micro controller gives appropriate commands till the call is terminated. Thus, the GSM Module is a trans receiver. When the subscriber makes a call and establishes contact, he starts speaking and establishes a connection between both the parts. Hence, the item under reference is a part of two-way radio communication equipment and since the module is designed for GSM Technology, it can be considered only as a part of cellular phone. If this module is not present or used inside the GSM PCO, then the PCO has got to be connected with line telephony by means of wires and the internal circuit is also to be redesigned. In view of the above, the impugned products have no application in respect of line telephony, whatsoever. (v) In Para 15 of the Show Cause Notice, it has been alleged that WISMO are classifiable under CTH 851790 as "Other Parts suitable for use in telecommunic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 8529 and which was revised by the Customs Assessing Officer to heading 8473 as Parts of calculating machine. Accordingly, there is no willful mis-declaration on the part of the appellant and the question of invoking extended period does not arise. (ix) Assuming without admitting willful mis-representation, it shall only be so for the Bills of Entry pertaining to. Sl. No. 01 to 15 of Annexure to the Show Cause Notice. The Bills of Entry from Sl. No. 16 to 25 on Annexure-I to the Notice are under provisional assessment. It is surprising to note as to how the department shall allege willful misrepresentation in respect of Bills of Entry filed by the appellant subsequent to the knowledge of the Department and that too which were assessed provisionally. Hence, it is submitted that there is no suppression of facts or willful misrepresentation in respect to Bills Entry Sl. 16 to 25 filed by the appellant and the different duty in respect of such Bills of Entry works out to Rs. 32,08,818/-. (x) The following case-laws were relied on: (a) P ushpam Pharmaceutical v. CCE - 1995 (78) E.L.T. 401 (S.C.) (b) Padmini Products v. CCE - 1989 (43) E.L.T. 195(S.C.) (c) ITW Signod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The contention of the appellant is that the impugned item is classifiable under 85299090. The said entry is reproduced below: "8529 - - - Parts suitable for use solely or principally with the apparatus of headings 8525 to 8528 8525 90 - - - Other 8529 90 10 - - - For communication jamming equipment 8529 90 20 - - - For amateur radio communication equipment 8529 90 90 - - - Other" In our view, the classification above appears to be more appropriate as the WISMO Modules are used in wireless applications and also with the apparatus of heading 8525 which reads as follows:- "8525: Transmission apparatus for radio-telephony, radio-telegraphy, radio-broadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras; still image video cameras and other video camera recorders; digital cameras. There are two ways of sending the signals. One is through wires. The other way of sending the signal is using the wireless mode. Since WISMO is a Wireless Standard Modules, we cannot accept the contention of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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