2004(08)LCX0311

IN THE CESTAT, NORTHERN BENCH, NEW DELHI

Cases Quoted

Bombay Chemicals Pvt. Ltd. v. Union of India — 1981(10)LCX0009 Eq 1982 (010) ELT 0171 (Bom.) — Distinguished [Paras 2, 3, 4]

Tata Teleservices Ltd. v. Commissioner — 2004(04)LCX0124 Eq 2004 (168) ELT 0181 (Tribunal) — Referred [Paras 2, 3, 4]

Advocated By :        S/Shri Arvind P. Datar, Sr. Advocate, R. Raghavan and T.S. Balasubramanium, Advocates, for the Appellant.

K.A. Mishra, SDR, for the Respondent.

[Order per : V.K. Agrawal, Member (T)]. - In these five appeals, filed by M/s. Tata Teleservices Limited, arising out of five orders-in-appeals, the common issue involved is whether fixed Wireless Terminals imported by them are classifiable under sub-heading 8525.2017 of the First Schedule to the Customs Tariff Act and benefit of exemption under Notification No. 21/2002-Cus., dated 1-3-2002 (Serial No. 313) is available to the impugned goods.

2. Shri Arvind P. Datar, learned Senior Advocate mentioned that the Tribunal in their own matter [Tata Teleservices Limited v. CC, Chennai - 2004(04)LCX0124 Eq 2004 (168) ELT 0181 (T)] has classified the impugned goods under sub-heading 8525.2019 of the Customs Tariff and has extended the benefit of Notification No. 21/2002- Cus. as amended by Notification No. 26/2003-Cus. (Serial No. 427). He submitted that while classifying the product under sub-heading 8525.2019 of the Customs Tariff, the Tribunal has not taken into consideration the three letters from the Department of Telecommunications [letter dated 12-3-2003, 16-4-2003 and 29-5-2003] wherein it has been opined that Fixed Wireless Terminals Model LSP 340 has the property of both transreceiver and features of telephone and is capable of operating on Cellular technology and therefore the same is covered under Serial No. 313 of Customs Notification No. 21/2002. That once the Nodal Ministry opines like this the revenue cannot hold that the impugned goods are not eligible for the benefit of Notification No. 21/2002. He relied upon the decision of Bombay High Court in the case of Bombay Chemicals Pvt. Ltd. v. Union of India and Others - 1981(10)LCX0009 Eq 1982 (010) ELT 0171 (Bom.) wherein it has been held that the Customs authorities are bound by the certificate issued by the DGT&D and cannot ignore or bypass it on the ground that it was issued under mistake or misrepresentation. Learned Senior Advocate, therefore, contended that once the Department of Telecommunications holds that the impugned goods are eligible for the benefit of notification, the customs department has to follow the same and cannot ignore or bypass the opinion. Learned Senior Advocate also contended that the mere fact that the impugned goods have been termed as Fixed Wireless Terminal does not mean that these are not cellular phone. That the classification of the product cannot be decided on the basis the name given to it. Finally he submitted that matter may be referred to the Larger Bench of the Tribunal for deciding the issue involved in these appeals.

3.  Countering the arguments Ms. K.A. Mishra, ld. SDR submitted that all the submissions made by the ld. Senior Advocate had been considered by the Tribunal before passing the final order in their own matter and classifying the impugned goods under sub-heading 8525.2019 of the Customs Tariff; that no new arguments have been advanced by the appellants in the present proceedings; that it is not correct to contend that the Tribunal while passing the earlier order in their own case has not considered the letters issued by the Department of Telecommunications; that in Paragraph 9 of the earlier order as published in 2004 (168) ELT 181 the Tribunal has considered the opinion tendered by Department of Telecommunications; that in any case the classification of a product under Customs Tariff is the work assigned to the Revenue Department and not to the Department of Telecommunications; that the said Department can only offer the advise about the product itself; that they have exceeded their jurisdiction while suggesting the eligibility of the impugned goods to the benefit of the exemption notification. The learned SDR further submitted that the ratio of the decision in the case of Bombay Chemicals Pvt. Ltd., is not applicable to the facts of the present matter as the notification dated 1-3-1961 involved in the said judgment itself prescribed for production of a certificate from the DGT&D to the effect that the chemicals are required for the manufacture of insecticides, pesticides and fungicides, that in the present matter no such certificate issued from the Department of Telecommunications has been prescribed in the Notification No. 21/2002 under consideration. She finally submitted that as there are no conflicting decisions of Coordinate Benches the question of referring the matter to the Larger Bench of the Tribunal does not arise.

4. We have considered the submissions of both the sides. We observe that the classification of the impugned product has, admittedly, been decided by the Tribunal in the appellant’s own matter. The Tribunal in the said decision has classified the impugned goods under Heading 8525.2019. The Tribunal has also denied the benefit of Notification No. 21/2002 (Serial No. 313) after considering all the submissions made by the learned Senior Advocate. We also agree with the learned SDR that the decision in the case of Bombay Chemicals Pvt. Ltd., is not applicable to the facts of the present matter. The appellants have not brought on record any new argument. Therefore, following our earlier decision we hold that the impugned goods are classifiable under sub-heading 8525.2019 of the Customs Tariff and the benefit of Notification No. 21/2002-Cus. is not available to the impugned goods. However, the impugned goods will be eligible for the benefit of Serial No. 427 of Notification No. 21/2002 as amended by Notification No. 26/2003. All the five appeals are disposed of in the above terms.

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Equivalent 2004 (174) ELT 0066 (Tri. - Del.)

Equivalent 2005 (099) ECC 0251 (Tri.-Del)