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TMI Blog2004 (8) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... red inter alia "Cellular Phones", was not available. The department seeks to interpret the scope of the term "Cellular Phones," which in appeared them to refer to only hand held mobile phones. The benefit of exemption to the imports, was denied after coming to the conclusions : (i) The clarification issued by the concerned Ministry i.e. Department of Communication and Information Technology, Government of India, cannot be taken to determine an assessment under a particular Tariff Heading. (ii) As regards classification, it was found and held as follows : "7.......It is indeed a telephone which does not require to be connected with cable for its operation, and therefore it can be moved from one area of operation to another, and it is of the size of a normal desk-top telephone. It has not been disputed that it works on cellular technology; but the issue is whether on the ground of its use of cellular technology, it would quality to be within the purview of 'cellular phone.' The controversy has arisen basically because there is no definition of 'cellular phone' either in the Customs tariff or even in the dictionaries that I have consulted. The Hon'ble Supreme Court has m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 2(a) of the General Rules for the Interpretation of Tariff, he held the importer item to be a complete telephone and not part of a telephone. After coming to these findings, he found that there has been no mis-declaration and suppression of facts on the part of the importer and on the issue of classification they had not misdeclared the description of the goods, they have merely claimed classification under a particular tariff heading and benefit of an exemption and as regards valuation, they have declared the value of a telephone without the software loaded on it and claimed assessment of software separately. Since the issue is of interpretation whether software was part and parcel of the telephone and being dedicated are debatable, it was held by the Commissioner that there were no mis-declaration or suppression of facts with regard to value and therefore he did not find any reason to order confiscation of the goods imported under Section 111(m) of the Customs Act, 1962 and penalty under Section 112(a). He however ordered classification of the FWT under 8525.20.19 and denied the exemption claimed under Notification 21/02-Cus. (Serial 313/serial 427) as amended and ordered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sample which was demonstrated by both sides before us, confirms that there can be no doubt the portability or and mobility of the phone in question. We therefore find no reason to restrict and exclude the coverage of the benefit of Notification from the benefit of the subject notification, which is using the term 'simplicitor cellular phone'. This term has to be interpreted to mean all kinds of telephones, which would be working on cellular technology and would be portable cannot be restricted to any specific size or model. (c) We find sufficient force in the plea made by the ld. Advocate for the appellant as regards the finding of the Commissioner, "nobody can deny that if one goes to a shop dealing with various types of telephones, and asks for a 'cellular phone', the shopkeeper would show him various models of hand held mobile phones also known as 'cell phones' only. The shopkeeper will surely not offer him a desktop phone working on cellular technology, when a customer asks for a 'cellular phone'. In the present case, this would be the final test of common parlance. I am therefore of the view that in common parlance a 'cellular phone', which is popularly known as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar phone' merely because it works on 'cellular technology'. It may be noted that the relevant entry in the notification is 'cellular phones' and not 'phones based on cellular technology'." Does not induce us to deny the benefit by restricting the benefit to the 'cellular phones'/mobile pocket sized phones. The HSN Notes mentioned in this paragraph of the Boards order have not been shown to us. We do not find any reason to deny the benefit on the grounds that term used in the notification is 'cellular phones' and not 'phones based on technological information'. The term 'cellular phone' would include all kinds of phones which would work on cellular technology and the term cannot be restricted as has been interpreted by the revenue only to cover hand held mobile phone. 4. (a) We find force in the catena of decisions relied upon by the ld. Advocate for the appellants (including the judgement of the Gujarat High Court in Inter Continental (India) v. Union of India [2003 (154) E.L.T. 37 (Guj.)] to claim that Central Board of Excise Customs' circular providing conditions to a notification would be tantamounting to rewriting a notification or legislating by circulars when the notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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