Reliance Jio Infocomm Ltd. Vs Commissioner of Customs (Air Cargo) (CESTAT Chennai)
The issue involved the present case is that whether the Antenna for base station imported by the appellant is classifiable as parts of base station under CTH 85177090 as claimed by the appellant or as machine/equipment for the reception, transmission and conversion of data under CTH 85176290 as claimed by the Revenue.
Identical issue 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 the above decision of this tribunal we are of the view that impugned order is not sustainable.
FULL TEXT OF THE CESTAT CHENNAI ORDER
The issue involved the present case is that whether the Antenna for base station imported by the appellant is classifiable as parts of base station under CTH 85177090 as claimed by the appellant or as machine/equipment for the reception, transmission and conversion of data under CTH 85176290 as claimed by the Revenue.
2. Shri Vipin Jain, learned Counsel appearing on behalf of the appellant at the outset submits that this very issue in the appellant’s own case has been considered by this tribunal at Mumbai Bench reported at COMMISSIONER OF CUSTOM (IMPORT), MUMBAI VS. RELIANCE JIO INFOCOMM LTD – 2019(369) ELT 1713 (Tri.- Mumbai) wherein the classification of antenna used for base transmission station for mobile connection network has been held as parts for base station under custom tariff item 85177090 of Custom Tariff Act 1975. Therefore, the issue is no longer under dispute and decided in favour of the appellant.
3. Shri R. Rajaram, learned Assistant Commissioner (Authorized Representative) appearing on behalf of the revenue reiterates finding in the impugned order.
4. We have carefully considered the submission made by both the sides and perused the records. We find that the limited issue to be considered by us in this appeal is that whether the antenna imported by the appellant is a parts of base station and classifiable under 85177090 or as a complete machine for reception, transmission or conversion of data under CTH85176290. We find that the very same issue in the appellant’s own case has been decided by this tribunal’s Mumbai Bench as cited above wherein the tribunal has passed the following order:
34. It is contended that Ld. Commissioner (Appeals) has failed to observe the principles of natural justice, inasmuch of as, the Department was not provided with adequate opportunities to present their case. Countering the said plea, the respondent on the other hand has submitted that a copy of the appeal has been endorsed to the department by the Learned Commissioner (Appeals); no written submission was filed by the department in response to the said appeal, nor any request for a personal hearing or adjournment of the hearing scheduled had been advanced. Besides, it is also argued that the relevant provision under the Customs Act and the Rules made thereunder mandates to extend personal hearing to the appellants and not to the respondents, and the argument of at least three adjournments of the personal hearing prescribed under the Act is only the upper cap and depends on the circumstances of each case, and not adjourning the matter invariably for three times in all cases will not result into violation of the principles of natural justice.
35. We find merits in the contention of the Ld. Advocate for the respondent. It is a normal practice before the Commissioner (Appeals) that the personal hearing is extended to the appellant-assessee when an appeal is filed by the assessee, the department is served with copy of the Appeal to submit their reply to the appeal and in the event they intend to be heard, such request 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 circumstances, 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 motu 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 inasmuch as that payment of the disputed amount before or after assessment of the respective bill of entry either under protest or otherwise will not make the assessment provisional/incomplete and not an appealable Order. On the contrary, in view of the principle of law laid down by the Hon’ble Bombay High Court in Karan Associate’s case (supra), an assessed Bill of Entry is an appealable order.
37. Now, coming to the merits of the case, it is not in dispute that the imported Antenna was meant to be used with the base station for mobile telecommunication network. It is also not in dispute that the antenna for base station, imported by the respondent earlier, that is prior to May, 2017 had been subjected to classification as “parts” under Heading 8517 70 90, and such assessment was never challenged by the Revenue.
38. The dispute now centres around the issue, whether the antenna for base station would be considered as a ‘machine’ and accordingly classifiable under CSH 8517 62 90 as claimed by the Revenue or as “parts” classifiable under CSH 8517 70 90, claimed by the respondent.
39. Therefore, to understand the scope of the competing entry 8517 62 90 & 8517 70 90 and its applicability to the imported goods in question, it is necessary to have a glimpse on the development (changes) brought into the said Tariff Heading 8517 and related tariff entries 8525, 8527 & 8529 of CTA 1975.
Before 1-1-2007 :
