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TMI Blog2023 (7) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... e only when connected to a base station. In the event if the antenna so designed, instead of working as a passive element, besides the above function, it also performs some more functions as in the case of other entries under the same category, its classification under sub-heading 8517 62 may be attracted considering the same as an independent of machine . The Revenue s contention to classify the antenna for base station under sub-heading 8517 62 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 - Since the same issue has been considered by the coordinate bench and the appeals filed by the revenue have been dismissed, this appeal also needs to be dismissed. The appeal filed by the revenue is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Custom Act, 1962, reassessing the imported goods as stated in table above were challenged by the respondents before the Commissioner (Appeal) who by the impugned order, referred in para 1 above allowed the appeals and upheld the classification as claimed by the importers while filing the Bill of Entries. 2.3 Aggrieved revenue has filed this appeal. 3.1 We have heard Shri Ramesh Kumar, Assistant Commissioner, Authorized Representative for the revenue (Appellant) and Shri T Viswanathan and Akhilesh Kangsiya, Advocates for the Respondent. 3.1 Arguing for the Appellant, learned Authorized Representative reiterated the grounds taken in the appeal filed by the revenue From the Datasheets of the said Base Station Antennas it is evident that the said Antennas are integrated antennas with accessories having remote electrical tilt features, which suggests that these are not mere wire or tube antenna and are having in-built electro-mechanical features to control their orientation/direction. It is apparent that the above details have not been taken into consideration in the opinion given by Prof. Girish Kumar, Electrical Engineering Department, IIT Bombay as well as the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... headings of Chapter 84 or Chapter 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 solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517. (c) All other parts are to be classified in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate or, failing that, in heading 8487 or 8548". In terms of the said Explanatory Notes - Communication networks include, inter alia, carrier-current line systems, digital-line systems, digital-line systems and combination thereof. They may be configured, for example, as public switched telephone networks, Local Area Networks (LAN), Metropolitan Area Networks (MAN) and Wide Area Networks (WAN), whether propri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the imported antennas are passive and not a machine. It has also been held that the said antennas are not an apparatus and cannot function on its own unless connected to equipment/ apparatus/ device. In this regard it is reiterated that as far as classification of the imported goods is concerned it is pertinent to mention that the terms of the headings and any relative Section or Chapter Notes are paramount, i.e., they are the first consideration in determining classification. It is apparent that the single dash entry under heading 8517 pertaining to apparatus for communication in a wired or wireless network (such as a local or wide area network does not specify the passive or active nature of the apparatus which allows for the connection to a wired or wireless communication network and the Notes to the HSN include articles such optical electrical communication apparatus. Further, Note 5 of Section XVI of the Tariff specifies that the expression "machine" means any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of Chapter 84 or 85. Apparatus for communication in a wired or wireless network (such as a local or wide area network) be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods. It remains a fact that apparatus for communication in a wired or wireless network (such as a local or wide area network) and thereby apparatus which allows for the connection to a wired or wireless communication network are covered under the single dash entry of heading 8517. In the given circumstances it is apparent that the terms of the headings and any relative Section or Chapter Notes would prevail over any other decision. The decision of the Hon'ble Tribunal in case of M/s Reliance Jio Infocom Ltd [2019 (369) ELT 1713 (Tri-Mum)] relied upon by the respondent's counsels has been appealed against by Revenue and the appeal has been admitted. 3.3 Arguing for the respondent learned counsels submitted that: The imported 'Passive Antenna' have universal application in all cellular technology including 2G/3G/LTE. This is evident from Opinion of Prof. Girish Kumar, Electrical Engineering Department, IIT Bombay. Classification of passive antenna for base station stands concluded under Tariff Item 8517 70 90 in favour of the Respondents, by the Hon'ble CESTAT, Mumbai in CC Vs. Reliance Jio Infocomm - 2019 (369) ELT 1713. This view is also taken by the Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cus dated 15.01.2018. In paragraph 13, recording his reasons for differing, he observes as follows: "13. The original authority (OA) in the impugned order has simply quoted the CBIC circular number 01/2018 (Instruction) dated 15.01.2018 and just mentioned one sentence regarding his findings on the issue as "I find the explanation provided by the aforementioned CBI instructions circular number 1/2018 - Cus dated 15.01.2018 is self explanatory in nature." So saying the adjudicating authority has rejected the declared classification under the tariff item 85177090 and re-determined under tariff item 85176290. The OA has not given any specific finding on the submissions made by the appellants to canvass their standpoint. the quasi-judicial authorities are expected to independently apply their mind to the case, consider the submissions of the affected parties and then pass a reasoned order in adjudication as held in UOI v/s Madras Steel Re-rollers Association [2012 (278) ELT 864(SC) and CCE v/s Minwool Rock Fibres Ltd [2012 (278) ELT 584 (SC). The OA has not independently applied his mind while adjudging these matters. Considering the evidence furnished by the appellants, the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o adjourn the matter till the decision of Hon'ble Apex Court in the Civil Appeal Diary No 14979/2020. 4.5 The issue was again considered by the tribunal in case of Reliance Jio Infocomm vide the order reported at [2022- TIOL- 604-CESTAT-Mum] and the bench dismissed the appeals filed by revenue sating as follows: "17. We also find that Revenue submits that on the basis of Explanatory notes to the HSN the items are complete machines or equipments classifiable under CTH 85176270. The Department submits alluding to the HSN that as per explanation (G) the equipment referred to therein allowed for connection to a wired or wireless communication network or the transmission or reception of speech or other sound, images or other data within such networks. A look at this explanatory notes shows us the following. "85.17 - Telephone sets, including telephones for cellular networks or for other wireless networks; other apparatus for the transmission or reception of voice, images or other data, including Apparatus for communication in a wired or wireless network (such as a local or wide area network), other than transmission or reception apparatus of heading 84.43,85.25,85.27 or 85 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evices (used for sending more than two messages simultaneously) and certain receivers, termed "diversity receivers", using multiple receiver technique to overcome Fading. (2) Radio transmitters and radio receivers for simultaneous interpretation at multilingual Conferences. (3) Automatic transmitters and special receivers for distress signals from ships, aircraft, etc. (4) Transmitters, receivers or transmitter/receivers of telemetric signals. (5) Radio-telephony apparatus, including radio-telephony receivers, for motor vehicles, ships aircraft, trains, etc. (6) Portable receivers, usually battery operated, for example, portable receivers for calling, alerting or paging. (G) Other communication apparatus. This group includes apparatus which allows for the connection to a wired or wireless communication network or the transmission or reception of speech or other sounds, images or other data within such a network. Communication networks include, inter alia, carrier-current line systems, digital-line systems and combinations thereof. They may be configured, for example, as public switched telephone networks, Local Area Networks (LAN), Metropolitan Area Networks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dealing with the classification of antennas imported by the very same respondent case. This Bench observed that "Now, a simple analysis of Heading 8517 effective from 1-1- 2007, it is clear that the instruments/telephone sets for cellular networks/wireless net works, apparatus both for transmission and reception of voice, images or other data in a wired or wireless network, and "parts" classified under the said heading broadly placed under three categories of single dash (-). First single dash (-) for telephone sets, including telephones for cellular network or for other wireless network; second single dash (-) for 'other apparatus for transmission or reception of voice, images, or other data including apparatus for communication in wired or wireless network (such as local or wide area network); and the third single dash (-), for "parts". The 'base station' is classified under the second category under CSH 8517 61 00, to which neither side disputes. 42. Revenue, referring to the definition of 'machine' prescribed under Note 5 of Section XVI classified the 'antenna' for base station under second category, as 'machines' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 & 5G network in the developed wireless cellular technology. Comparing the data placed on the imported goods, we find merit in the contention of the Learned Advocate for the appellant that to be antenna as machine, it needs to be something more than a passive element of receiving and sending electromagnetic waves when attached to a base station. The meaning of 'machine' provided under Note 5 to Section XVI reads as : "5. For the purposes of these Notes, the expression "machine" means any machine, machinery, plant, equipment, apparatus or appliance in the headings of Chapter 84 or 85." The meaning of 'machine' has to be understood in the context of Heading 8517. This is clear when we read the scope of Heading 8517 as explained under HSN which reads as follows :- "This heading covers apparatus for the transmission or reception of speech or other sounds, images or other data between two points by variation of an electric current or optical wave flowing in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing 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 solely or principally with a particular kind of machine, or with a number of machines of the same heading (including a machine of heading 8479 or 8543) are to be classified with the machines of that kind or in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate. However, parts which are equally suitable for use principally with the goods of headings 8517 and 8525 to 8528 are to be classified in heading 8517; (c) all other parts are to be classified in heading 8409, 8431, 8448, 8466, 8473, 8503, 8522, 8529 or 8538 as appropriate or, failing that, in heading 8487 or 8548." 47. A simple analysis of Clause (a) of the above Note reveals that parts which are 'goods' required to be classified in the respective headings; in the present case, 'Antenna' being a part of the BTS, hence applying the said Rule, classifiable under Chapter Heading 8517. Revenue& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne instance Revenue has accepted the order of Commissioner (Appeals). We find that the Department has not drawn any samples and did not obtain technical opinion to support their claim that the impugned goods are complete machines or equipment capable of independent function themselves so as to merit classification under CTH 85176270. On the contrary, the respondents could demonstrate by technical literature; samples and the ratio of judgments cited above that the goods imported by them are Populated Circuit Boards (PCBs) used in PSS 1830 and therefore, the impugned goods are parts of PSS and as such merit classification CTH 85177010. We also find that the appellants have submitted US Customs Rulings on the classification of the impugned goods, though they are not binding on us, they would certainly have a persuasive effect more so in the absence of any evidence to the contrary. In view of the discussion as above, and considering the fact that Commissioner (Appeals) has been consistent in rejecting the department's claim, we are of the considered opinion that there is no merit in the appeals filed by the Department. 21. In the result, we uphold the impugned orders and reject t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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