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TMI Blog2016 (5) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... CIAL MEMBER AND SHRI V. PADMANABHAN, TECHNICAL MEMBER For the Appellant : Shri Veerabhadra Reddy, JC (AR) For the Respondent : Shri S. Sankaravadivelu, Advocate ORDER PER V. PADMANABHAN Revenue being aggrieved by the appellate order dt. 26.8.2011 holding that the goods imported by the appellant were the parts, components and accessories of the Fixed Wireless Terminal (FWT) which was complimentary to the telephone instrument to function under CDMA technology and mobile for us and respondent is eligible to get the benefit of the Customs Notification No.21/2005-Cus. dt. 1.3.2005 and not liable to Additional Duty of Customs has challenged that order praying for reversal thereof maintaining the order of adjudication. 2. On behalf of Revenue, Ld.D.R submits that respondent made import of the goods as per the Bill of Entry which were parts and accessories of CDMA FWT model WF 836F consisting of main PCB, G3 fax PCD, Plastic casings top etc. and claimed exemption of the Additional Duty of Customs thereon in terms of Notification No.21/2005-Cus. dt. 1.3.2005. But such benefit was not available to the respondent. Revenue agitates the matter before Tribunal prayin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the CDMA cell tower and common land telephone connected to the device with the help of the RJ 11 telephone jack provided. If the equipment could perform the functions of a telephone, there would be no need of attaching an external telephone to the device. The goods under import are a device that is only capable of functions subsequent to the primary functions performed by the land telephone attached to the equipment, including transmitting electric radio signals from the Cell tower (the base Transceiver station) and receiving radio signals from it. Thus the goods are primarily a transceiver for electric radio signals and cannot receive or reproduce sound signals, this function of converting sound signals to electric impulses and vice versa is carried out by a telephone connected to the terminal. [Emphasis supplied] 2.3. Considering the characteristics of the Fixed Wireless Terminal (FWT) manufactured by the respondent, ld. Adjudicating Authority examined the goods manufactured by the respondent in the light of the judgement of the Apex Court in the case of TATA Teleservices Ltd. Vs CC - 2006 (194) ELT 11 (SC). But in paras 27 to 29 at pages 18 to 20 of the order he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further contention is that the clarification of the BSNL (Ref.page 105 of the respondent s paper book and copy of literature at page 134 thereof) is of no consequence to the respondent for the reason that there is conflict of interest of BSNL being buyer of the goods from the respondent. Such evidence relied upon by the respondent is liable to be discarded. 2.7. The Revenue also contended that the decision of Supreme Court in the case of TATA Teleservices Ltd. Vs CC (supra) is quite distinguishable in the present case since that has dealt with classification and not with the grant of exemption notification. Therefore learned adjudicating authority has correctly dealt with the sum and substance of the judgement and denied exemption to the respondent. 2.8. Revenue relied on the HSN classification in respect of tariff heading 85.17 to support its case stating that the goods manufactured by the respondent falls therein without granting any exemption to the goods imported. Ld. D.R supported the order of adjudicating authority going through the decision of the Chief Commissioners Conference as has been recorded in para-21 of the adjudication order. He further relied on the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Therefore, for no violation of the condition of the notification it is not disentitled to exemption of Additional Duty of Customs. The goods imported as per Notification 21/2005-Cus. dt. 1.3.2005 being specified description of goods and were used in the mobile handsets of the nature described aforesaid, the respondent is covered by the scope of the grant of exemption. It is his further submission that CBEC amended its circular No.57/2003 dt. 27.6.2003 as appearing on page 118 of the paper book and informed to field formation that Apex court s decision in TATA Teleservices Ltd. explains the situation to resolve the disputed issue. It was also submitted that page 105 of paper book read with page 134 thereof explains the very nature of the goods manufactured by respondent demonstrates that those are mobile handsets only. 3.3 Relying on Circular No.15/2006-Cus. Dt. 20.4.2006 at page 118 of the paper book respondent submitted that Board s intention being very clear on the basis of Apex court decision in the case reported in 2006 (194) ELT 11 (SC), the Bombay Bench of the Tribunal in the case of Teracom Private Ltd. Vs CC Goa - 2008 (222) ELT 58 (Tri.-Mumbai) has held that the like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1962) the Central Government, on being satisfied that it is necessary in the public interest to do so, hereby exempts parts, components and accessories of mobile handsets including cellular phones, from the whole of duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and from the whole of the additional duty leviable thereon under sub section (1) of section (3) of the said Customs Tariff Act subject to the condition that the importer follows the procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for the manufacture of excisable goods) Rules, 1996. This notification exempts parts, components and accessories of mobile handsets including cellular phones from Customs duties when imported. The various parts imported were to be assembled into model FWT WF 836F . The entire dispute centers around the question whether this equipment described as Fixed Wireless Terminal can be considered as a mobile handset including cellular phone . The original authority decided, after considering the salient features of the FWT, that they cannot fall within the description of mobile handsets including cellular pho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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