2007(08)LCX0296

IN THE CESTAT, SOUTH ZONAL BENCH, BANGALORE

Dr. S.L. Peeran, Member (J) and Shri T.K. Jayaraman, Member (T)

ITI Ltd.

Versus

Commissioner of Customs, Bangalore

Final Order Nos. 952-954/2007, dated 21-8-2007 in Appeal Nos. C/322-324/2005

Advocated By -

Shri K. Parameswaran, Advocate, for the Appellant.
Ms. Sudha Koka, SDR, for the Respondent.

[Order per: T.K. Jayaraman, Member (T)]. -

These appeals have been filed against a common Order-in-Appeal No. 56/2005/Cus (B) dated 13-5-2005 passed by the Commissioner of Customs (Appeals), Bangalore.


2. Shri K. Parameswaran, the learned Advocate, appeared for the appellants and Ms. Sudha Koka, the learned SDR, for the Revenue.


3. The appellants imported Fax Secrecy Model and Link Secrecy Device Model under three Bills of Entry. The issue involved is the correct classification of the Fax Secrecy Model and the Link Secrecy Device Model. The appellants contend that these items are classifiable under Chapter Heading 8517.80.20 and 8517.80.90 of the Customs Tariff Act as Line Telephony equipments. However, the Revenue wants to classify these items under Chapter Heading No. 8543.89.99 as Others in the Bills of Entry. According to the learned Advocate, if the claim of the appellant is accepted, they would be entitled for consequential refund, as they had paid higher duty for the classification decided by the department.


4. We heard both the parties.


5. The issue is quite simple. The items imported are Fax Secrecy Model and Link, Secrecy Device Model. These items have been imported by the Home Ministry. In important communications relating to Government and other Agencies, it is desired that the communication is kept secret so that none can intercept the communication and break the secrecy. This is the idea of these machines. These machines work on the principle of encrypton and decrypton. If a message is encoded so that the encoded message is not intelligible to anyone who intercept it, that process is known as encrypting a message. The encrypted message is normally transmitted and at the end of the receiver, there is a decrypton. The decrypton decodes the encoded message so that the actual communication is received by the receiver. This is the principle of all the secrecy equipments. Now, the Commissioner (Appeals) does not accept that these are apparatus for line telephony equipments. The reasons given are as follows:-

"Now the question is as to whether the communication will not be through without this item in order to classify it as an apparatus for line telephony. In the case of Voice Secrecy Secure telephone (Model 212) cleared along with the two items in question here, it itself is a telephone instrument which replaces a normal telephone. This would mean that the communication will not be through without this telephone even though it also does the function of securing the conversation. In other words, it has got both the functions of Communication and Securing the conversation. On the contrary, in the case of Fax Secrecy (Facsimile Encryptor), it is contended between the Fax Machine and the telephone line and it encrypts the message but it does nothing more than that. It is the telephone line which communicates the encrypted message. Even in the absence of the Fax Secrecy, the normal message would have been communicated. Therefore, the Fax Secrecy does nothing connected with communication and I conclude that the Fax Secrecy cannot be termed as an apparatus for line telephony.

Likewise, the Link Secrecy device is also an equipment connected between a Computer and a Modem. This also is used to protect data while being communicated from one station to other station/remote station. The question is whether it participates in the function of data transmission. No doubt, the data passes through this device but it does not send it to the other station. The efficiency of the device would be rated on the basis of how correctly it could encrypt and how correctly it could decode the data. This function has got nothing to do with the transmission of the data. Therefore, it is clear from the above that the item in question cannot be termed as an apparatus for line telephone."

5.1 On going through the Commissioner (Appeals)'s order, we find that there is a contradiction. His logic is, even without the secret machines, which are the impugned items viz. Fax Secrecy and Link Secrecy Devices, the communication can be passed on. The same thing will be applicable even for the Voice Secrecy Secure Telephone for which he has accepted the classification that they are line telephony equipments. The same logic would be applicable here. The point is that these equipments also communicate the message over a telephone line. The only difference is these machines which are at the subscribers end convert the normal messages whether it is fax or any other type of message into coded form by encrypton method and the coded message is transmitted and received at the other end of the receiver and before the receiver actually gets the message, these messages are decrypted or decoded. Therefore, these equipments definitely form part of the communication set up and they would definitely be classifiable as part of the line telephony apparatus. Therefore, the classification claimed by the appellant is correct and the Commissioner (Appeals)'s decision that they cannot be classified under Heading 8517 is not legal and proper. In view of this, the impugned order has no merits. We allow the appeals of the appellants with consequential relief, if any.

(Pronounced in open Court on 21 Aug 2007)

Equivalent 2008 (221) ELT 0550 (Tri. - Bang.)

Equivalent 2008 (084) RLT 0091 (CESTAT-Ban.)

Equivalent 2007 (123) ECC 0252

Equivalent 2007 (149) ECR 0252 (Tri.-Bangalore)