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TMI Blog2006 (10) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturers of WLL CDMA Hand Held Terminals, an excisable commodity. For the manufacture of the above goods, they imported inputs and in respect of certain inputs there was indigenous procurement. They cleared WLL CDMA Hand Held Terminals without payment of duty availing exemption Notification No. 6/2002 Central Excise dated 1-3-2002 as amended by Notification No. 6/2003 Central Excise dated 1-3-2003.The dispute is whether the impugned goods are entitled for the benefit of the exemption Notification under Sl. No. 264. The case of the department is that a Notification exempts only "Cellular Phones and Radio Trunking Terminals" and it has not covered WLL CDMA Hand Held Terminals. Relying on the consultation paper of the-Telecom Regulatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Terminals" (Vide Sl. No.264). In the Explanatory Notes under Chapter 85 "Cellular Phone, Mobile Phone, Pagers, Radio trunking Terminals, Parts, Components and Accessories of the Mobile Hand Sets including Cellular Phones (Falling under Chapter Sub-Heading No. 8525.20 and 8527.90) respectively have been exempted from Excise Duty (Budget Instructions of 2003-04). (ii) An examination of the "instrument" would show that they are : • Hand sets working on Cellular technology. • Hand sets are Mobile and can be easily carried by any person, in his pocket, wherever he goes. • Though they work on CDMA Technology they are "mobile" and work in an area in which the infrastructure is provided by the Service Providers viz., Reliance, TATA INDIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t CBEC Circular cannot impose limitation, which are not provided in the Notification itself and whittle it down. In this connection, the observations of the Apex Court in Para 10 of the judgment is very relevant and reproduced here below. 10.We are of the view that the reasoning of the Bombay Bench of the Tribunal as well as that of the Andhra Pradesh High Court must be affirmed and the decision of the Delhi Tribunal set aside insofar as it relates to the eligibility of the LSP 340 to the benefit of the exemption notification. The Andhra Pradesh High Court was correct in coming to the conclusion that the Board had, in the impugned circular, pre-determined the issue of common parlance that was a matter of evidence and should have been left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limit either the tariff entry or the exemption notification to hand held cellular phones. Neither the range nor the size would make any difference. 6.2 The Commissioner in the impugned order has not properly examined the entitlement of the impugned goods to the benefit of the exemption Notification taking into account the various judicial decisions. The point at issue is whether the impugned goods viz., WLL CDMA Hand Held Terminals is entitled to the benefit of exemption Notification. The relevant entry in the exemption Notification reads as "Cellular Phones and Radio Trunking Terminals". The issue is whether the item is a cellular phone. There is no dispute that the handsets manufactured by the appellants work on cellular technology. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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