DEJERO LOGIX PVT. LTD. Versus Commissioner of Customs, New Delhi>2014(01)LCX0103

2014(01)LCX0103

IN THE CESTAT, PRINCIPAL BENCH, NEW DELHI

Justice G. Raghuram, President and Shri Rakesh Kumar, Member (T)

DEJERO LOGIX PVT. LTD.

Versus

Commissioner of Customs, New Delhi

Final Order No. C/A/50631/2014-CU(DB), dated 29-1-2014 in Application No. C/Misc/61497/2013 in Appeal No. C/55436/2013-CU(DB)

Advocated By -

Shri B.L. Narsimhan, Advocate, for the Appellant.
Shri Amresh Jain, DR,for the Respondent.

[Order per : Rakesh Kumar, Member (T)].-

The facts leading to filing of this appeal and miscellaneous application are, in brief, as under :-

1.1 The appellant imported a consignment of goods declared as "Transmitter Broadcasting Equipment Sub-system (Data Processing Unit) with transmitting capabilities for broadcasting, software and other standard accessories". The appellant filed a bill of entry No. 7687005, dated 17-8-2012 for clearance of the goods declaring assessable value as Rs. 51,70,619/- CIF. The classification of the goods was claimed as "Transmitter Broadcasting Equipment Sub-System" under Heading No. 8525 50 30 which as per the Exim Policy, is a freely importable item without any import licence. The goods were examined on First Check basis for ascertaining the correct nature of the goods. The quantity of the goods was found to be as per invoice and packing list. However, on examination of the goods and perusal of the catalogue accompanying the goods, the assessing officers were of the view that the goods imported are Live + transmitter for Live television broadcasting, which work on cellular frequency (EVDO, 3G, 4G, LTE), Ethernet and WiFi net connections. The department was accordingly of the view that the goods imported are not broadcasting equipment sub-system of subheading No. 8525 50 30, as declared in the bill of entry but are complete equipment which is used to transmit live audio/video signals for broadcasting and that the same would be correctly classifiable under sub-heading No. 8525 50 20 and in terms of 1TC (HS) classification of export and import items, import of these goods would require an import licence, as the import of Television broadcasting transmitter of sub-heading No. 8525 50 20 is restricted and is not permitted to be imported except against the licence to be issued by the WPC Wing of the Ministry of Telecommunication and Information Technology. Accordingly, a show cause notice was issued to the appellant for confiscation of the goods under Section 111(d) of the Customs Act, 1962 and imposition of penalty on the appellant. The show cause notice was adjudicated by the Commissioner vide Order-in-Original dated 25-10-2012 by which the impugned goods were ordered to be con-fiscated without giving an option to be redeemed on payment of redemption fine on the ground that the importer has not produced the requisite licence from the WPC wing of the Ministry of Telecommunication & Information Technology. Besides this, a penalty of Rs. 5 lakh was also imposed on the appellant under Section 112(a) of the Customs Act, 1962. Against this order of the Commissioner, the present appeal has been filed.

2. Since the goods had been ordered to be confiscated absolutely without any option to be redeemed on redemption fine in terms of the provisions of Section 125 of the Customs Act, 1962 and since the appellant apprehended that the goods would be disposed of by auction, a Misc. Application No. 61497/2013 was filed by them for restraining the department from disposing of the goods during the pendency of the appeal. Earlier, the application filed by the appellant for waiver of pre-deposit had been heard by the Tribunal and the Tribunal vide order dated 25-6-2013 while waving the pre-deposit had directed the Registry to list the matter for final disposal on 1-8-2013 as the live consignment is involved, which has been absolutely confiscated. The matter after being adjourned several times for various reasons was ordered to be listed for final disposal on 29-1-2014. Today at the time of hearing, Shri B.L. Narsimhan, Advocate, the Id. Counsel for the appellant pleaded that since the department has already disposed of the goods by auction, the Misc. application has become infructuous. Accordingly, the Misc. application is dismissed as infructuous and the matter is heard for final disposal.

3. Shri B.L. Narsimhan pleaded that the goods imported are classifiable under Heading No. 8517 62 90 as "other apparatus for transmission of voice, images or other data including apparatus for communication in a wired or wireless network", that the equipment imported transmits the audio and video signals recorded at a site to the studio through the GSM network, that the equipment, in question, by itself cannot broadcast the audio or video signals and hence the same is not covered by Heading No. 8525 50 20 as T.V. broadcast transmitter, which is restricted for import, that at the most it can be called broadcast equipment sub-system covered by sub-heading No. 8525 50 30, which is freely importable, that every transmission is not radio or TV broadcast, that as per the McGraw-Hill Encyclopedia of Science & Technology, terms 'broadcast' means a television or radio transmission intended for public reception, that in terms of The New Encyclopedia Britannica, the term "broadcasting" means the transmission of the radio and television programmes that are intended for general public reception as distinguished from private signals, that are directed to specific receivers, that the equipment, in question, is incapable of transmitting audio or video signals directly for reception by the general public, that sub-heading No. 8525 50 10 covers radio broadcasting equipment and sub-heading 8525 50 20 covers T.V. broadcasting equipment, both of which are the equipments which can transmit radio or television programme for general public and it is these equipments which are restricted for import, that since the equipment imported can only transmit the audio and video signals through cellular network from the place of recording to the studio, from where the signals are broadcasted for general public, the equipment, in question, cannot be called the equipments for television broadcast or radio broadcast, that in this regard, the Commissioner in Para 3.5 of the impugned order has given a clear finding that the goods imported are a standalone piece for transmission of audio or video signals between the field reporter and studio, that from this finding of the Commissioner, it is clear that the equipment is not meant for television or radio broadcast, that when the goods are not classifiable under sub-heading No. 8525 50 20, the same are freely importable and that in any case, the impugned order ordering absolute confiscation of the goods which are held to be restricted and not prohibited, is contrary to the provisions of Section 125 of the Customs Act, 1962. He, therefore, pleaded that the impugned order is not sustainable.

4. Shri Amresh Jain, Id. Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner in it and drawing the attention of the Bench to Para 3.2 of the impugned order pleaded that on perusal of the catalogue and literature accompanying the goods, it is found that the goods, in question, are Live + Transmitter for the live television broadcasting, that, thus, the catalogue itself describes the goods as those meant for live television broadcasting, that the catalogue accompanying the goods also mentions that the equipment gives the user the flexibility to either broadcast Live back to the studio or to Live + broadcast server or to Live + streaming server, that this also shows that the goods, in question are the television broadcast equipment and would be classifiable under Heading No. 8525 50 20 and hence would be restricted for import. He, therefore, pleaded that there is no infirmity of the impugned order.

5. We have considered the submissions from both the sides and perused the records.

6. The undisputed facts are that the equipments in question can be used for transmission of audio/video signals recorded by a field reporter to the studio through GSM/3G mobile network. In this regard, the findings of the Commissioner in Para 3.5 of the impugned order are reproduced below :-
"3.5 I also find that the impugned goods are specially for transmission purpose and not for one to one communication. The device is essentially a standalone piece which is between frontend (camera, etc.,) and back end (studio). Essentially the equipment is meant for transmission of live video between the field reporter and studio. The signal is captured by devices such as cameras (not part of this equipment), which get relayed to the studio with this device with the help of GSM Cellular network. At the other end, the studio (not part of this equipment) processes the signals and broadcasts to the audience."
6.1 From the above findings of the Commissioner in the impugned order, it is clear that the equipment, in question, is merely for transmission of audio and video signals by a reporter from some place to his studio through GSM cellular network and it is from the studio that the audio/video recording is broadcasted to the public. This fact is clear from the technical literature also, according to which this equipment gives a person the flexibility to either broadcast Live programme to the studio, or to Live + broadcast server or Live + Streaming server.

7. The goods covered under 8525 50 10 and 8525 50 20 are "Radio broadcast treatment" and "TV broadcast transmitter" respectively. Every transmitter is not a broadcast transmitter for public reception. The equipment which can merely transmit some audio or video signals from one place to another place and is not capable of transmitting the signals which can be received by general public cannot be called broadcast equipment. What is covered under Heading No. 8525 50 10 and 8525 50 20 are the transmitter which can transmit radio or TV programme intended for reception by public and it is such equipment which are
restricted for import. Since the equipment imported cannot transmit the signals for reception by general public but is meant only for transmitting the audio or video signals by a reporter from some place to his studio from where the signals are broadcasted for general public, the equipment, in question, cannot be classified under Heading No. 8525 50 20 and hence, the same would not be restricted for import. The impugned order, therefore, is not sustainable. The same is setaside. The appeal is allowed.
(Operative order pronounced in the open Court)

Equivalent 2014 (303) ELT 0565 (Tri. - Del.)