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TMI Blog2022 (2) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... sue in the appellant s own case has been decided by tribunal Mumbai Bench wherein it was held that the antenna imported by the appellant is correctly classifiable under customs 85177090 as parts. Following this tribunal, it is held that the impugned order is not sustainable. The appeal is allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... quest is made accordingly in filing their written submission to the Appeal. Majority of cases where appeals are filed by the assessee, the appeals are disposed of by the Commissioner (Appeals) after hearing the assessee after due notice to the department. In the present case, nothing has been brought on record to show that the Commissioner (Appeals) has deviated from the normal practice or rejected the request of adjournment of the department and proceeded by disposing the Appeal after hearing the Appellant in a biased manner without putting the department on notice about filing of the Appeal. Thus, in these circumstance, in our view, there is no violation of principles of natural justice in disposing the appeal by the learned Commissioner (appeals) by not adjourning the hearing suo motto for three times without any request for adjournment from the department in this regard. 36. The second preliminary objection raised by the Revenue is that since the duty has been paid under protest, the assessment is not final, therefore appeal against the assessment Order cannot lie before the Commissioner (Appeals). We do not find merit in the said contention of the Revenue in as much as that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hy u Free - 8517 50 30 -- Modems (modulators-demodulators) u Free - 8517 50 40 -- High bit rate digital subscriber line system (HDSL) u Free - 8517 50 50 -- Digital loop carrier system (DLC) u Free - 8517 50 60 -- Synchronous digital hierarchy system (SDH) u Free - 8517 50 70 -- Multiplexer, statistical multiplexer u Free - --- Other: u Free - 8517 50 91 ---- ISDN terminals u Free - 8517 50 92 ---- ISDN terminal adapters u Free - 8517 50 93 ---- Routers u Free - 8517 50 94 ---- X25 pads u Free - 8517 50 99 ---- Other u Free - 8517 80 - Other apparatus: u Free - 8517 80 10 --- Attachments for telephones. u Free - 8517 80 20 --- Subscriber end equipment u Free - 8517 80 30 --- Set top boxes for gaining access to the Internet u Free - 8517 80 90 --- Other u Free - 8517 90 - Parts: u Free - 8517 90 10 --- Populated, loaded or stuffed printed circuit boards kg Free - 8517 90 90 --- Other kg Free - 8525 Transmission apparatus for radio-telephony, radiotelegraphy, radio-broadcasting or television, whether or not incorporating reception apparatus or sound recording or repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... telegraphy: u 12.5% - 8527 31 00 -- Combined with sound recording or reproducing apparatus u 12.5% - 8527 32 00 -- Not combined with sound recording or reproducing apparatus but combined with a clock u 12.5% - 8527 39 00 -- Other u 12.5% - 8527 90 - Other apparatus: u 12.5% - --- Radio communication receivers u 12.5% - 8527 90 11 ---- Radio pagers u 12.5% - 8527 90 12 ---- Demodulators u 12.5% - 8527 90 19 ---- Other u 12.5% - 8527 90 90 --- Other u 12.5% - 8529 Parts suitable for use solely or principally with the apparatus of headings 8525 to 8528 8529 10 - Aerials and aerial reflectors of all kinds; parts suitable for use therewith: Kg 12.5% - --- Dish antenna: Kg 12.5% - 8529 10 11 ---- For communication jamming equipment Kg 12.5% - 8529 10 12 ---- For amateur radio communication equipment Kg 12.5% - 8529 10 19 ---- Other Kg 12.5% - --- Other aerials or antenna: Kg 12.5% - 8529 10 21 ---- For communication jamming equipment Kg 12.5% - 8529 10 22 ---- For amateur radio communication equipment Kg 12.5% - 8529 10 29 ---- Other Kg 12.5% - --- Other: Kg 12.5% - 8529 10 91 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... --- X 25 Pads u Free - 8517 69 50 --- Subscriber end equipment u Free - 8517 69 60 --- Set top boxes for gaining access to internet u Free - 8517 69 70 --- Attachments for telephones u Free - 8517 69 90 --- Other u Free - 8517 70 - Parts: u Free - 8517 70 10 -- Populated, loaded or stuffed printed circuit boards Kg Free - 8517 70 90 -- Other kg Free - 40. From the above comparative study, it is clear that prior to 2007, the heading 8517 was consisting of Apparatus i.e. telephone instruments only for line telephony and not for radio telephony; the transmission apparatus for radio telephony was covered under heading 8525 and reception apparatus for radio telephony was covered under heading 85.27; the antenna for the apparatus for radio telephony under heading 8525 & 8527 was specifically covered as "parts" under 8527 of CTA,1975. After 01.01.2007 the instruments for radio telephony/mobile network, Apparatus for reception & transmission, and "parts" have been placed under one heading i.e 8517 of CTA, 1975. Revenue continued classification of Antenna for mobile network as "parts" accepting its classification under 85177090 post 01.01.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of their contention that the Antenna imported for base station is a passive element, the Respondent placed on record the opinion of Vinod Gandhi & Associates, Government registered Chartered Engineer. Also, they have placed a letter dt.12.11.2018 issued by the manufacturer of Antenna i.e. M/s Ace Technology, Korea i.e. Antenna supplied by them are passive part of base station i.e. e Node B. It is clarified that the Antenna on its own is not capable of performing any function and when connected, it only transmits and receives only the signals. It is further stated that the Antenna is not performing in any other functions like conversion or regeneration of voice, images or other data signals or switching and/or routing of signals. No technical literature has been placed by the Revenue in support of their contention that the imported Antenna for base stations are designed to function independently as a machine, contrary to the claim of the Respondent that these are passive elements and can function only when attached to the base station for receiving and sending signals. The Revenue has placed the general information available on net about the multi fold use of e node Antenna in 4G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention to classify the 'Antenna' for base station under sub heading 851762 rests on the ground that as per note 2(a) of section XVI, parts which in themselves constitute an article covered by a heading of this section, in all cases are to be classified in their own appropriate heading even if specially designed to work as part of a specific machine. Further it is contended that Antenna is a part of a machine classifiable under heading 8517, only in the situation when it is not covered by any other headings of the section. As per Department, since it is classifiable under 851762, hence, not to be considered under 851770 as 'parts'. The said Chapter note reads as follows: "2. Subject to Note 1 to this Section, Note 1 to Chapter 84 and to Note 1 to Chapter 85, parts of machines (not being parts of the articles of heading 8484, 8544, 8545, 8546 or 8547) are to be classified according to the following rules: (a) parts which are goods included in any of the headings of Chapter 84 or 85 (other than headings 8409, 8431, 8448, 8466, 8473, 8487, 8503, 8522, 8529, 8538, and 8548) are in all cases to be classified in their respective headings; (b) other parts, if suitable for use sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication system, the base station antenna receives and transmits electromagnetic waves in the base station system. Its main features are as follows:- * Directivity: horizontal beam width of 65 degrees for cellular sector networking; * High gain: 18dBi; * Vertical beam pointing adjustment function; and * Unique 4.3-10 connector for communication. 8517.70 8517.62 and 8517.70 GI₹ 1 [Note 2(b) to Section XVI] and 6 49. The invoices and the specification of antenna imported submitted during the course of the proceeding confirms the specification mentioned as above. 50. Revenue vehemently opposed to the said opinion of HS Committee stating that it is not binding on the department. We do not find merit in the argument of the Revenue in view of the principle of law laid down by the Hon'ble Delhi High Court in Manisha Pharma Plasto Pvt. Ltd's case (supra), where under it is held that the that the opinion of Harmonized Systems Committee has lot of weight and should ordinarily be taken as binding. Similar view has been expressed by the Tribunal in the case of CCE, Pune-I Vs. Telco Ltd. 2002 (143) ELT 548(Tri-Mum.), later upheld by the Supreme Court reported at 2003 (152) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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