2012(11)LCX0174

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI

S/Shri Ashok Jindal, Member (J) and P.R. Chandrasekharan, Member (T)

Ingram Micro India Ltd.

Versus

Commissioner Of Cus. (Import), Mumbai

Final Order No. A/23/2013-WZB/C-I(CSTB), dated 8-11-2012 in Appeal No. C/425/2012-Mum.

Advocated By -

Shri Anil Balani, Advocate, for the Appellant.
Shri A.K. Prabhakar, Supdt. (AR), for the Respondent.

[Order per : P.R. Chandrasekharan, Member (T)]. -

The appeal is directed against Order-in-Appeal No. 32/Mumbai-HI/2012, dated 29-3-2012 passed by the Commissioner of Customs (Appeals), Mumbai-III.

2. The appellant M/s. Ingram Micro filed Bills of Entry No. 457085, dated 9-3-2010 for import of flash memory cards under CTH No. 8523 51 00 and claimed exemption under Notification No. 24/2005, dated 1-3-2005 and concessional CVD of 4% under Notification 6/2006-C.E., dated 1-3-2006. The concessional rate of CVD was by the original adjudicating authority on the ground that the flash memory card imported by the appellant did not have any plug to function or serve as a plug-in-device and the goods were mostly and widely used in cell phones and cameras. The appellant preferred an appeal before the lower appellate authority. The lower appellate authority held that the notification refers to "flash memory" meant for external use with a computer as plug-in-device and not to flash memory card and flash memory is only a component or a part used in the flash memory card and therefore the benefit of exemption would not be available. Hence the appellant is before us.

3. Ld. Counsel for the appellant submits that the flash memory card imported by the appellant is the same product as specified in the notification "flash memory" which falls under CTH 8523 51 00 and it is meant for external use with a computer or a laptop as a plug-in-device. He also produced the product literature relating to the impugned goods which shows that the product under importation is a solid state digital memory card having no moving parts and it is a device which can be externally plugged into a computer or a laptop in addition to other devices such as mobile phones and cameras. He further submits that a plug-in-device need not necessarily have a separate plug mechanism and so long as it can be fitted in to provide an electric connection, it would be eligible for the benefit of the notification.


4. The ld. AR for the revenue reiterates the finding of the lower authorities.

5. We have carefully considered the rival submissions. The Notification No. 6/2006-C.E. reads as follows :


17. 8471 70 or 8473 The following goods namely :-
30 or 8523 51 00 (a) Microprocessors for computer, other than motherboards;
(b) Floppy disc drive;
(c) Hard disc drive;
(d) CD-ROM drive;
(e) DVD Drive/DVD writers;
(0 Flash memory;
(g) Combo drive;
(h)
(i) meant for fitment inside the CPU housing/laptop body only;
meant for external use with a computer or laptop as a plug-in-device
Heading 8523 51 00 covers "solid state non-volatile storage device." There is no dispute of the fact that the item under importation is a solid state non-volatile storage device. The only dispute is that whether flash memory and flash memory card are the same or are they different. The Notification refers to flash memory meant for external use with a computer or laptop as a plug-in-device. The goods under importation satisfy this description. Therefore, the argument of the lower appellate authority that flash memory and flash memory cards are different items has no sound technical basis. The product literature available on record clearly indicates that the item under importation is a solid state memory card and is meant for external use with a computer or laptop as a plug-in-device. The product literature further states that these cards can be plugged in without the need for an adapter. Thus, from the product literature, it is clear that the product under importation satisfies the description given on the Notification.


6. Accordingly, we set aside the impugned order and allow the appeal with consequential relief, if any.

(Operative part pronounced in Court)

Equivalent 2014 (301) ELT 0588 (Tri. - Mumbai)