Custom, Excise & Service Tax Tribunal
Cc New Delhi (Import & General) vs M/S. Geo Vision Technologies Pvt. Ltd on 10 February, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. I Appeal No. C/161/2009-CU(DB) [Arising out of Order-in-Original No. CC(A)CUS/I&G/09/2009 dated 13.01.2009 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), New Delhi]. For approval and signature: Honble Shri Justice G. Raghuram, President Hon'ble Shri R.K. Singh, Member (Technical) 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? CC New Delhi (Import & General) .Appellants Vs. M/s. Geo Vision Technologies Pvt. Ltd. .Respondent
Appearance:
Shri Rajeev Gupta & Shri M.R. Sharma, DR for the Appellant None present for the Respondent CORAM:
Honble Shri Justice G. Raghuram, President Hon'ble Shri R.K. Singh, Member (Technical) Date of Hearing: 10.02.2016 FINAL ORDER NO. 50890/2016-CU(DB) Per R.K. Singh:
Revenue is in appeal against the order in Appeal dated 13.01.2009.
2. The facts of the case are as under:
The respondent filed a Bill of Entry dated 12.12.2008 for GSM/GPRS/GPS/Terminal with RF ID interface/ 300 MAH Battery/ Audio. It is stated that the said device works in the following manner:
(i) The Device is fitted in the vehicle
(ii) A GSM SIM card from mobile service provider
(iii) The device communicates with a remote server / computer via GSM/GPRS signal.
(iv) The data received by server / computer is processed.
(v) The position of vehicles can be known to anybody having internet connections and login and password to access the account of server.
(vi) The device is complete in itself which is fitted in vehicle. Rest of the display units is only server and personal computer.
The importer informed that the above device is fitted in a vehicle. The device is fully self contained and does not need any other modules or component except a GSM SIM Card. The device communicates with remote server via GSM/GPRS connection. The GPS position signal is received by server through internet connection.
3. The primary adjudicating authority held that the goods were classifiable under 85269190 requiring an import license under Export Import (Exim) policy which the respondent did not possess and accordingly goods were confiscated under section 111(d) of the Customs Act 1962 with an option to redeem the same on fine of Rs. 2,50,000/-. Penalty of Rs. 50000 was also imposed on the respondent. On the appeal filed by the respondent against the primary adjudicating authority order, the Commissioner (A) held that the goods were classifiable under Section 85256019 and not under Section 85269190 and so were freely importable and consequently allowed its appeal against which Revenue is in appeal.
4. Revenue has contended as under:
5. No one appeared on behalf of the respondent, although the case was adjourned to 06.01.2016 when proxy counsel for the respondent was present. Earlier also, on 08.04.2015 and on 08.07.2015 there was no appearance on behalf of the respondent. No request has been received for adjournment either. Therefore, we proceed to decide the case on merits.
6. We have considered the Revenues contentions and perused the records. The Commissioner (A) has observed that the goods are meant for controlling the movement of the vehicles. It is also clear that the vehicle user is not aware of his position or is able to communicate / transmit about his position and he cannot navigate to reach a particular destination on his own. He can only be contacted by sending a SMS through service provider. All the data is radioed through service provider.
We find that the above observation of the Commissioner (A) does not represent the factual portion in as much as the impugned goods not only enable the taxi company to know where each its vehicles (which are fitted with the impugned goods) was located but also enable it to instruct the driver to proceed to a particular spot and the driver of the vehicle is also able to give feedback to the taxi company. Therefore, the impugned goods are clearly GPS trans receiver rather than mere GPS receiver and would therefore, be covered under CTH 85269190. We find that the Commissioner (A) vide his following orders has himself held that GPS trans receiver is separate and distinct from GPS receiver and its import is restricted requiring import license under EXIM policy 2004-2009 and the same are correctly classifiable under 85269190:
(i) Order in Appeal No. CC(A) Cus/I&G/05/09 dated 07.01.2009 of M/s. Shotam Instrument Pvt. Ltd.
(ii) Order in Appeal No. CC(A) Cus/I&G/69/09 dated 23.03.2009 of M/s. Orange tools Pvt. Ltd.
(iii) Order in Appeal No. CC(A) Cus/I&G/70/09 dated 25.03.2009 and CC(A) Cus/I&G/72/09 dated 26.03.2009 of M/s. Nucleus Micro Systems (P) Ltd.
7. In the light of the aforesaid analysis, the impugned goods are held to be classifiable under CTH 85269190 and the Revenues appeal is allowed.
(Operative part of the order pronounced in the open court)
(Justice G. Raghuram) President
(R.K. Singh) Member (Technical)
Bhanu
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C/161/2009-CU(DB)