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TMI Blog2024 (4) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... . On careful reading of the impugned order passed by the learned Commissioner of Customs (Appeals), it transpires that he has given a specific finding that the impugned goods fall under the category of Optical transport equipment . In coming to such conclusion, he had referred to the description of the imported item Transceiver incorporates transmitter and receiver and thus it is an equipment for optical transportation. Accordingly, he has concluded that since these are optical transport equipment, the benefit of customs duty exemption in the exemption entry at Sr. No.20 of the Notification No. 57/2017-Customs dated 30.06.2017 is not applicable to the impugned goods. Since the impugned goods are neither telephone sets under (i) above, nor an apparatus/independent machine for transmission or reception of voice, images or other data, under second group of items mentioned in (ii) above, and are also not covered as specified part under CTI 8517 7010 viz., Populated, loaded or stuffed printed circuit boards , these are specifically covered under the CTI 8517 7090 as other parts . The product under consideration i.e., Small Form-factor Pluggable Optical Transceiver of various models are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, and differential customs duty of Rs.36,16,445/- was demanded under Section 28(1) of the Customs Act, 1962 along with applicable interest, besides the proposal for confiscation of the impugned goods under Section 111(m) ibid and imposition of penalties under Section 112(a) and 117 ibid. The Order-in-Original dated 08.03.2021 in confirmation of the adjudged demands was appealed against by the appellants before the learned Commissioner of Customs (Appeals), which were disposed of vide impugned order dated 27.01.2022 passed by him in upholding the order passed by the original authority and rejecting the appeal filed by the appellants. Feeling aggrieved with the impugned order, the appellants have preferred this appeal before the Tribunal. 3.1 Learned Advocate appearing for the Appellants, stated that the impugned goods viz. Transceiver for Ethernet switch/ Transceiver modules of different models all essentially sub-assemblies/components/parts of Optical Transport Equipment. The function of these transceiver module is to link or connect the switch/router devices to the network, and these goods do not work or function on their own. On the basis of the opinion given by their technical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of C. Ex., Mumbai-III 2001 (127) E.L.T. 186 (Tri.- Mum.) (iii) Wipro GE Medical Systems Ltd. Vs. CC, 2006 (206) E.L.T. 400 (Tri.- Bang.) (iv) Lewek Altair Shipping Pvt. Ltd. Vs. Commissioner of Customs, Vijayawada 2019 (366) E.L.T. 318 (Tri. - Hyd.) (v) Commissioner Vs. Lewek Altair Shipping Pvt. Ltd. 2019 (367) E.L.T. A328 (S.C.) 4. Learned Authroised Representative appearing for the Revenue reiterated the findings recorded by the learned Commissioner (Appeals) in the impugned order and stated that exemption under Notification No.57/2017-Customs dated 30.06.2017 (Sl. No.20) is not applicable to the impugned goods, as the appellants themselves contradicted their declaration of imported goods as complete equipment in B/E and in the appeal as these are only parts. Hence, he claimed that the appeal is liable to be set aside. 5.1 Heard both sides and perused the records of the case. We have also considered the additional written submissions given in the form of paper book by learned Advocate for the appellants as well as Authorised Representatives for the Revenue, and the arguments advanced during the hearings of this case. 5.2 Brief issue for consideration before us is the eligibilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appellant should have classified them at CTH 8517 70 90 men for parts of heading 8517 It cannot be a choice of the applicant that at the time of clearance, they were declared goods in accordance to the CTH 85176290 and classifying them at the same heading (85176290) and when demand under section 28(1) is raised, after the clearance of the goods, they would state that the impugned goods were sub system/sub-assembly/part of that good and not exactly that good. 6. in view of the above, I hold that the impugned goods imported by the appellants which falls under the category of Optical transport equipment are not eligible for exemption under serial No.20 of the notification No.57/2017, dated 30.06.2017 by virtue of notification No.75/2018-Customs dated 11.10.2018 and notification No.02/2019- Customs dated 29th January 2019 7. On careful reading of the impugned order passed by the learned Commissioner of Customs (Appeals), it transpires that he has given a specific finding that the impugned goods fall under the category of Optical transport equipment . In coming to such conclusion, he had referred to the description of the imported item Transceiver incorporates transmitter and receiver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... socket / Other Mechanical items (Metal) for use in manufacture of cellular mobile phones 10% 1 4. 8517 12 Telephones for other wireless networks, other than cellular networks Nil - 5. 8517 70 90 (a) All goods other than the parts of cellular mobile phones (b) Inputs or sub-parts for use in manufacture of parts mentioned at (a) above Nil - 6. Any Chapter (a) The following goods for use in manufacture of cellular mobile phones, namely :- Nil 1 By issue of amending Notification No.22/2018-Customs dated 02.02.2018 various entries were added to the above Notification which included Sl. No. 20 as below: 20. 8517 62 90 All goods other than wrist wearable devices (commonly known as smart watches 10% - ; The above entry at Sl. No. 20 was further amended vide Notification No.75/2018-Customs dated 11.10.2018, w.e.f. 12.10.2018 as below: 20 8517 62 90 All goods other than following goods, namely: - (a) Wrist wearable devices (commonly known as smart watches) (b) Optical transport equipment (c) Combination of one or more of Packet Optical Transport Product or Switch (POTP or POTS) (d) Optical Transport Network (OTN) products (e) IP Radios 10% - 21 8517 69 90 All goods other than following goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properly classify the imported goods and see whether these are covered by the inclusion or exclusion provided therein. 8.3 In careful examination of the impugned order passed by learned Commissioner of Customs (Appeals), we find that such an examination has not been carried out. This is for the reason that firstly, the description of the goods specified in the exemption entry at Sl. No. 20 viz., All goods of CTI 8517 6290 have not been explained to state whether the imported goods is firstly classifiable therein in terms of the First Schedule to the Customs Tariff and then whether the imported goods are covered under the inclusion or exclusion. Even the original authority did not examine these aspects despite the claim made by the appellants that imported goods Soft Form-factor Pluggable (SFP) transceivers are only part of Optical Transport Equipment ; each of such Optical Transport equipment require various units such as Transmitter Optical Sub-Assembly (TOSA), Receiver Optical Sub-Assembly (ROSA), drive circuits, power electronics etc. 8.4 It could be seen that by careful examination of the goods covered under heading 8517 of the First Schedule to the Customs Tariff and the relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting that though the common issue of classification of Populated Printed Circuit Boards (PPCB) for DWDM Equipment Photonic Service Switch, common to all the appeals was decided by the above cited order, another issue of classification of Small Factor Pluggable (SFP) and alternative claim of exemption under Notification No. 24/2005-Cus dated 1.3.2005 remained to be decided in respect of the three appeals mentioned above. This Bench vide Miscellaneous Order No. M/85546/2022 dated 12.07.2022 has ordered that these three appeals be delinked and placed before the Bench for a fresh hearing on 13.07.2022. Accordingly, the hearing was held on 13.07.2022. xx xx xx xx 2.1 Learned Counsel further submits that vide order dated 25.01.2017, the Commissioner (Appeals), Hyderabad has held that SFPs are classifiable as parts under CTH 8517 70 and not as complete machine or apparatus under CTH 8517 6290; the said order of the Commissioner (Appeals), Hyderabad has been accepted by the Department and no appeal has been preferred; learned Commissioner (Appeals) in the impugned order followed the order of the Commissioner (Appeals), Hyderabad; further vide Order-in-Appeal dated 30.08.2019, Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Ethernet switch falling under CTH 8517 7090 and thereby are entitled to the benefit of Notification 24/2005- Cus dated 01.03.2005 as claimed by the appellant. Accordingly the order passed by original authority denying the benefit of exemption is also not correct and is liable to be set aside. 7 ..We find that the findings given by the ld. Commissioner (Appeals) vide the order cited above are quite elaborate and reasoned which were followed by the learned Commissioner (Appeals), Mumbai in the impugned order. Therefore, we find that no case has been made out by the Department against the impugned orders and accordingly, we find that the impugned orders do not require any interference by this Bench. 8. Accordingly, appeals filed by the Department are rejected. 9.2 Further, we find that above order of the Tribunal was appealed before the Hon ble Supreme Court in Civil Appeals No. 1475-1477 of 2023, and upon considering that the classification of SFP under CTI 8517 7090, as per the order of the Commissioner (Appeals) dated 25.01.2017 and the Tribunal, having been accepted by the department, had dismissed the appeals filed by the department. The extract of the said Order of the Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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