Custom, Excise & Service Tax Tribunal
Rittal India Pvt Ltd vs The Principal Commissioner Customs ... on 26 August, 2024
C/20523, 20530 ,20531,
20634/2014 & E/21866/2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL
BANGALORE
REGIONAL BENCH - COURT NO. 1
Customs Appeal No.20523 of 2014
(Arising out of Order-in-Original No.23/2013-Commr. dated
08.11.2013 passed by the Commissioner of Customs, Bangalore.)
M/s. Rittal India Private Limited
No.23 & 24,
KIADB Industrial Area, Appellant(s)
Veerapura, Dodaballapur,
Bangalore - 561 203.
VERSUS
Commissioner of Customs,
Central Revenue Building,
P.B.No.5400: Queens Road,
Bangalore - 560 001. Respondent(s)
WITH
(i) Customs Appeal No.20530 of 2014 (Debabrata Sinha
vs. Commissioner of Customs, Bangalore.)
(Arising out of Order-in-Original No.23/2013 dated 08.11.2013
passed by the Commissioner of Customs, Bangalore)
(ii) Customs Appeal No.20531 of 2014 (Sugana Murthy
Chari vs. Commissioner of Customs, Bangalore)
(Arising out of Order-in-Original No.23/2013 dated 08.11.2013 passed
by the Commissioner of Customs, Bangalore.)
(iii) Customs Appeal No.20634 of 2014 (Suresh Kumar vs.
Commissioner of Customs, Bangalore)
(Arising out of Order-in-Original No.23/2013 dated 08.11.2013
passed by the Commissioner of Customs, Bangalore)
(iv) Central Excise Appeal No.21866 of 2014 (Rittal India
Private Ltd. vs. Commissioner of Customs, Bangalore.)
(Arising out of Order-in-Appeal No. 10/2014 dated 28.02.2014
passed by the Commissioner of Central Excise, Large Taxpayer Unit
(Appeals), Bangalore)
APPEARANCE:
Shri Harish Bindumadhavan, Advocate, for the Appellant
Shri Maneesh Akhoury, Asst. Commissioner (AR) for the Respondent
CORAM: HON'BLE DR. D.M. MISRA, MEMBER (JUDICIAL)
HON'BLE MRS R BHAGYA DEVI, MEMBER
(TECHNICAL)
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Final Order No. 20683 to 20687 /2024
DATE OF HEARING: 17.04.2024
DATE OF DECISION: 23.08.2024
PER : D.M. MISRA
This is an appeal filed against Order-in-Original
No.23/2013-Commr. dated 8.11.2013 passed by the
Commissioner of Customs, Bangalore and Order-in-Appeal
No.10/2014 dated 28.2.2014 passed by the Commissioner of
Customs (Appeals), Bangalore.
2. Briefly stated the facts of the case are that the appellant
had imported various parts for manufacture of telecom racks by
wrongly claiming the benefit of exemption Notification
No.21/2002-Cus. dated 1.3.2002 and Notification No.12/2012-
Cus. dated 17.03.2012 mis-declaring as parts for manufacture of
Base Trans-receiver Station (BTS), whereas they were not
manufacturing BTS equipment. On the basis of intelligence, it is
alleged that the appellants are manufacturers of telecom racks
for which they import radial/centrifugal fan, temperature control
module, CS lock tongue, lamp cable, etc., declaring the same as
"Parts for BTS rack, Parts for Base-receiver Stations, For BTS,
Parts of Telecom Racks", etc., and claimed exemption under Sl.
No.242 of Notification No.21/2002-Cus. dated 01.03.2002 as
amended and Sl. No.372(ii) under Notification No.12/2012-Cus.
dated 17.3.2012 as parts for manufacture of BTS (Sl. No.3(a) of
List 22 and List 17 applicable to Sl. No.242 of Notification
No.21/2002-Cus. dated 01.03.2002 as amended and Sl.
No.372(ii) under Notification No.12/2012-Cus. dated
17.03.2012). Show-cause notice was issued to the appellant on
05.06.2013 for recovery of the customs duty short-paid
amounting to Rs.84,41,352/- with interest and proposal for
imposing penalty under Section 114A and Section 114AA of the
Customs Act, 1962, during the period June 2008 to November
2012. On adjudication, the demand was confirmed with interest
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and penalty under Section 114A, 114AA and personal penalty on
the employees of the appellant. In appeal No.E/21886/2014,
appellant vide application dated 22.3.2013 requested the Deputy
Commissioner, LTU, Bangalore to issue Annexure-III certificate,
which was rejected vide letter dated 25.7.2013, observing that
they have wrongly claimed exemption under Notification
No.21/2012-Cus. dated 01.03.2012 and Notification
No.12/2012-Cus. dated 17.03.2012. Aggrieved by the said
orders, appellant filed appeals before the learned
Commissioner/Commissioner (A) who has upheld the orders of
the adjudicating authority. Hence, the present appeals.
3. At the outset, the learned advocate for the appellant
submitted that appellant is a wholly owned subsidiary of Rittal
GmbH & Co. KG, Germany and they are engaged in the business
of manufacturing enclosure systems including enclosures for
communication systems (commercially known as 'telecom racks'
or 'outdoor cabinet'). These 'telecom racks' form an integral part
of Base Trans-receivers Stations ('BTS'), which is an equipment
used for transmitting and receiving radio signals. A BTS consists
of several active and passive components, such as trans-
receivers, antennas, air conditioning unit, electrical supply, back-
up power supply, etc. All these components are integrated and
housed in 'telecom racks' sold by the Appellant. He submits that
various parts including radial/centrifugal fans, temperature
control module, gore cooling filters, air to air heat exchanger are
imported by the Appellant and installed in the telecom racks and
sold to Ericsson India Private Limited in terms of the Agreement
entered between the Appellant and Ericsson following which
Ericsson would then assemble other components in these
'telecom racks' and supply the same to various telecom service
providers as a single BTS unit. He submits that BTS are exempt
from whole of customs duty in terms of Notification No.
21/2002-Customs dated 01-03-2002 and Notification No.
12/2012-Customs dated 17-03-2012 and the Appellant
manufactures telecom rack, which is an integral part of BTS,
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exemption was claimed in terms of entry at S. No. 242 and
372(b) of the above notifications, respectively.
3.1 Further, he submits that a BTS consists of two parts -
outdoor cabinet/rack fitted with cooling components such as
radial fans, gore cooling filters, etc., manufactured by the
Appellant) and active components such as Base Band Unit
(BBU), radio equipment, transmission equipment, etc.,
manufactured by Ericsson. It is submitted that only when the
above parts are put together, it qualifies as an
operational/functional BTS. Without either of the parts, the BTS
is incomplete and cannot function efficiently. In support,
definition of BTS given in Newton's Telecom Dictionary is relied
upon, which reads as:-
"The electronic equipment housed in cabinets that together with
antennas comprises a PCS facility or site. The cabinets include an air
conditioning unit, heating unit, electrical supply, telephone hook-up, and
back-up power supply".
A plain reading of the above definition shows that BTS is an
electronic equipment housed in cabinets. Therefore, the telecom
racks/cabinets manufactured by the Appellant form an integral
part of BTS. In other words, without the cabinet/rack along with
other necessary items, the station is incomplete as they play a
major role in the efficient functioning of BTS.
3.2 Further, reliance was placed on the following case to hold
that telecom racks/cabinets form an integral part of BTS without
which BTS will not function:
• Hutchison Essar South Ltd. v. Commissioner of
Customs, Bangalore, 2006 (193) ELT 81 (Tri.-Bang.)
• Commissioner of Customs, Bangalore v. Hutchison
Essar South Ltd., 2015 (324) ELT 240 (SC).
• Commissioner of Customs, Bangalore v. Spice
Telecom, 2006 (203) ELT 538 (SC)
3.3 He submits that from technical reports from ITI Ltd.,
Siddaganga Institute of Technology and Indian Institute of
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Technology, Delhi, submitted by the appellant show that telecom
racks/cabinets manufactured by the Appellant form an integral
part of BTS. In view of the above submissions, appellant claim
that the cabinets/telecom racks manufactured by them are parts
of BTS and exemption was rightly available to them.
3.4 He further submits that 'part of part' will constitute 'part of
whole' and telecom racks/cabinets are nothing but parts of BTS
and that they are eligible to avail the exemption Notification. To
buttress his claim on this ground, he has relied upon following
decisions:
• Collector of Central Excise v. Mahendra Engg.
Works, 1993 (67) ELT 134 (Tribunal)
• Collector v. Mahendra Engg. Works, 2002 (141)
ELT A284
• Commissioner of C. Ex., Calcutta-II v. Bansal
Industrial Corporation, 1997-VIL-95-CESTAT-KOL-
CE
• Pushpam Forging v. Commissioner of Central
Excise, Raigad, 2006 (193) ELT 334 (Tri.-Mumbai)
• M/s. Racily Udyog, Shri Kalyan Das v.
Commissioner of Central Excise, Kolkata-III,
2023-VIL-411-CESTAT-KOL-CE
3.5 He submits that neither the show-cause notice nor the
order expressly brings out the omissions or commissions on the
part of the functionaries but merely states that penalty is
imposed on account of the act of omission or commission.
Hence, when there is no intent to evade duty, personal penalties
imposed on the appellant are not sustainable and liable to be set
aside.
4. The learned Authorised Representative (AR) for the
Revenue referring to the Notification No.21/2012-Cus. dated
01.03.2012 and Notification No.12/2012-Cus. dated 17.03.2012
submitted that it is evident that the imported goods are to be
used for manufacture of BTS by following the procedure
prescribed under Import of Goods at Concessional Rate for
Manufacture of Excisable Goods (IGCRME) Rules, 1996 as
amended. The appellant asserted that they are manufacturing
intermediary goods and parts of BTS and nowhere it is said that
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the imported goods are to be used for manufacture of final
goods and not the intermediary goods as claimed by the
appellant, does not in any way provides them the liberty to
construe the Notification as per their convenience. Rather, for
strict interpretation of the Notification, it is imperative that the
Notification should specify that the imported goods may be used
for manufacture of intermediary goods/parts of BTS and in the
absence of the same, the benefit of the Notification has been
rightly denied in the impugned orders.
4.1 It is his contention that the question to be decided is not
as to whether the denial of benefit is correct or otherwise, rather
than the question to be decided is whether the benefit of
Notification is correct, just and legal or not. The Notification
should be strictly interpreted as held by the Hon'ble Supreme
Court in the case of Hari Chand Shri Gopal: 2010 (16) ELT 3
(SC) and Dilip Kumar & Co.: 2018 (361) ELT 577 (SC).
4.2 Further, he has submitted that the appellant have claimed
that they were manufacturing telecom racks which are integral
part of BTS. In order to substantiate their claim, they produced
letter from their client M/s. Ericsson, Technical Reports from SIT,
Tumkur and IIT, Delhi. The letter issued by M/s. Ericsson cannot
be taken as having any evidentiary value since the appellants
were their suppliers and there is mutual interest involved. On
the technical write-up of SIT, Tumkur and IIT, Delhi, the learned
AR raising doubt on the said letters submitted that it contains
same subject, paragraphs, wordings, lines, coma and full stop
but only the letterheads, date and signature vary. Thus, it is a
deliberate attempt by the appellant to place on record concocted
evidence and misguide the Tribunal. On this ground alone,
appeal is liable for dismissal. Further, he submitted that despite
the said fact, even on merits, the adjudicating authority has
considered the said two technical write-ups and it is evident from
both the write-ups that the appellants are manufacturing only
semi-finished parts and not parts of BTS. In support, he has
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referred to the judgment of this Tribunal in the case of M/s.
Raydean Industries vs. The Commissioner of Central Goods and
Service Tax: 2022-TIOL-355-CESAT-DEL.
4.3 Rebutting the argument of the learned advocate that the
demand is barred by limitation, the learned AR for the Revenue
has submitted that the Registration Certificate of the appellant is
for manufacture of "Parts of Telecom Racks" whereas in
Annexure-III, the application is for import of "Parts for Base
Trans-receiver Station". Thus, the declaration filed by the
appellant for Registration and in Annexure-III applications are
different, hence, there is a deliberate attempt on the part of the
appellant causing mis-statement and suppression of facts with
an intention to avail the benefit of Notification and evade
customs duty, therefore, invocation of extended period of
demand is correct and justified. Also for the said reasons,
liability for confiscation under Section 111(m) and 111(o) and
penalty under Section 112, 114A and 114AA on the appellants
are justified.
6. The issues involved in the present case for consideration
are whether:
(i) the parts imported and used in the manufacture of
'telecom racks' eligible to the benefit of Notification
No.21/2002-Cus. dated 01.03.2002 and Notification
No.12/2012-Cus. dated 17.03.2012.
(ii) extended period of limitation is applicable.
7. The appellants had imported the following parts claiming
exemption under Notification No.21/2002 Cus & 12/2012 Cus
during the relevant period:
a. Radial/centrifugal fans
b. Temperature control module
c. CS lock tongue and CS lock middle block
d. CS door stay
e. Alarm cable
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f. Lamp cable
g. Ergoform S handle
h. Dirak lock insert
i. Gore cooling filters
j. Air-to-air heat exchanger
k. CS lock bar stay
l. Hinge,
m. cable hex side & cable hex door
n. CS thermal isolation foam
o. Lamp bulb
p. Lamp holder
q. CS OVP grounding screw
r. Screw M5 X 15 SS Torx head
s. KSS edge protection
t. CS BS and M5-2 screw
8. The said parts are used in the manufacture of telecom
racks i.e., outdoor compact enclosures/outdoor cabinets,
following the procedure laid down under Customs(Import of
Goods at concessional rate for Manufacture of Excisable
Goods),Rules,1996. The said manufactured 'telecom racks' are
supplied to M/s. Ericsson India Pvt. Ltd., who in turn assemble
with other components to manufacture 'Base Trans-receiver
Station'(BTS) and supply the same to various telecom service
providers . The appellant claimed exemption under Sl. No.242
Notification No.21/2002-Cus. dated 01.03.2002 being parts of
Goods of sr.239 read with goods in List No.22 appended to the
said Notification. The conditions prescribed for serial No. 239 is
condition No.47 and for serial No. 242 is condition No.5.
9. The relevant entries of the said Notification is reproduced
below:
S. Chapter or Description of goods Standard Additional Condition
No. Heading or rate duty rate No.
sub-heading
239 84, 85 or 90 Goods specified in List Nil - 47
22 required for basic
telephone service,
cellular mobile
telephone service,
internet service or
closed users' group 64
KBPS domestic data
network via INSAT
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satellite system service
242 84, 85 or any Parts of goods Nil - 5
other Chapter specified at S. No. 239,
240 and 241 above
List 22 (See S. No. 239 of the Table)
(1) Telephonic or telegraphic apparatus of the following description:
(a) Switching apparatus for cellular mobile telephone service
(b) Base station controllers
(c) ATM Switches
(d) Frame Relay Switches
(e) Ethernet Switches
(2) Apparatus for Carrier Current Line System or Digital Line System of
the following description:-
(a) HDSL System
(b) Dense Wave Division Multiplexing (DWDM) System
(c) Routers
(3) Radio communication equipment including VHF, UHF and microwave
communication equipment of the following description:-
(a) Base Transreceivers stations (BTS)
(b) Satellite communication equipment; the following customer premises
equipment, namely:-
(i) Radio with LNA,up converters and down converters
(ii) Satellite modems
(c) BTS ancillary equipment of the following description,-
(i) Cellular repeaters
(ii) Amplifiers
(iii) Wave Guides
(4) Network management stations
(5) Computers for billing and customer services
(6) Short message service hardware/Voice mail service hardware
(7) Automatic call distribution system
(8) Transcoders
(9) Test equipment
Note:- Goods specified against item 1(a) is to be imported only by
Cellular Mobile Telephone Service Licensees and Universal Access Service
Providers.
Condition Conditions
No.
5. If the importer follows the procedure set out in the
Customs (Import of Goods at Concessional Rate of Duty for
Manufacture of Excisable Goods) Rules, 1996.
47. If imported by a person licensed by the Department of
Telecommunications of the Government of India for the
purpose of providing basic telephone service, cellular
mobile telephone service, value added services via V-SAT
system or Internet Service
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10. Subsequently, Notification No.12/2012-Cus. dated
17.03.2012 was issued whereunder the appellant claimed the
benefit under Sl. No.372(ii) of List 17. The conditions prescribed
under the said Notifications are 5 and 52 which reads as follows:
Sl. Chapter or Description of goods Standard Additional Condition
No. Heading or rate duty rate No.
sub-heading
or tariff item
372 84, 85 (i) Goods specified in Nil - 52
or 90 List 17 required for basic
telephone service, cellular
mobile telephone service,
internet service or closed
users‟s group 64 KBPS
domestic data network via
INSAT satellite system
service.
Notwithstanding anything
contained in List 17, the
exemption shall not apply to
the following goods falling
under 8517, namely:-
(a) Soft switches and Voice
over Internet Protocol
(VoIP) equipment namely
VoIP phones, media
gateways, gateway
controllers and session
border controllers;
(b) Optical Transport
equipment; combination of
one or more of Packet
Optical Transport
Product/Switch(POTP/POTS),
Optical Transport
Network(OTN) products,
and IP Radios;
(c) Carrier Ethernet Switch,
Packet Transport Node
(PTN) products,
Multiprotocol Label
Switching-Transport Profile
(MPLS-TP) products;
(d) Multiple Input / Multiple
Output (MIMO) and Long
Term Evolution (LTE)
Products.
(ii) Parts, for Nil - 5
manufacture of the goods at
(i)
List 17 (See S. No. 372 of the Table)
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(1) Telephonic or telegraphic apparatus of the following description:
(a) Switching apparatus for cellular mobile telephone service
(b) Base station controllers
(c) ATM Switches
(d) Frame Relay Switches
(e) Ethernet Switches
(2) Apparatus for Carrier Current Line System or Digital Line System of
the following description:-
(a) HDSL System
(b) Dense Wave Division Multiplexing(DWDM) System
(c) Routers
(3) Radio communication equipment including VHF, UHF and microwave
communication equipment of the following description:-
(a) Base Trans-receivers stations (BTS)
(b) Satellite communication equipment; the following customer premises
equipment, namely:-
(i) Radio with LNA, up converters and down converters
(ii) Satellite modems
(c) BTS ancillary equipment of the following description,-
(i) Cellular repeaters
(ii) Amplifiers
(iii) Wave Guides
(4) Network management stations
(5) Computers for billing and customer services
(6) Short message service hardware
(7) Automatic call distribution system
(8) Transcoders
(9) Test equipment
Note:- Goods specified against item 1(a) is to be imported only by
Cellular Mobile Telephone Service Licencees and Universal Access Service
Providers
Condition Conditions
No.
5. If the importer follows the procedure set out in the
Customs (Import of Goods at Concessional Rate of Duty for
Manufacture of Excisable Goods) Rules, 1996.
52. If imported by a person licensed by the Department of
Telecommunications of the Government of India for the
purpose of providing basic telephone service, cellular
mobile telephone service, value added services via V-SAT
system or Internet Service
9. The Revenue alleging that the appellants are not
using imported parts in the manufacture of the BTS system(sr.
no 3(a) of List 22), but used it in the manufacture of outdoor
cabinets, which after installation of other systems at the
premises of M/s. Ericsson becomes parts of the BTS system. The
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appellant had argued that outdoor cabinets Telecom Racks forms
an integral part of BTS, thus, imported goods for manufacture of
parts of telecom racks are also parts of BTS. It is their
contention that part of part will construe part as a whole. In
support, they have referred to the judgment of this Tribunal in
the case of Collector of Central Excise v. Mahendra Engg. Works,
1993 (67) ELT 134 (Tribunal) and M/s. Racily Udyog, Shri Kalyan
Das v. Commissioner of Central Excise, Kolkata-III, 2023-VIL-
411-CESTAT-KOL-CE.
10. The learned Authorised Representative for the Revenue on
the other hand heavily relied upon the judgment of the Principal
Bench of the Tribunal in the case of Raydean Industries Ltd.
(supra). Further, he has submitted that the exemption
Notification has to be strictly construed in view of the ratio laid
down by the Hon'ble Supreme Court in the case of Hari Chand
Shri Gopal (supra) and Dilip Kumar and Co.'s case (supra).
11. We have carefully analysed the arguments advanced by
both sides. From the facts, it is clear that the imported parts
classified under different Tariff Headings are used in the
manufacture of outdoor cabinets which is called as Telecom
Racks by the appellant and the outdoor cabinets are ultimately
cleared by the appellant to M/s. Ericsson. The outdoor cabinets
are enclosures with doors and panels made to specified
dimension and fitted with various items such as fans, filters,
cables, etc. They provide necessary cooling, cable entry and
electrical connection for the complete function of BTS. The
enclosures protects the BTS from dust and rain. It is supplied to
M/s. Ericsson India Pvt. Ltd. who in turn mount the outdoor BTS
inside the outdoor cabinet and integrated sub racks to generate
signals as a 'Base Trans receiver Station'.
12. This Tribunal has considered in Raydean Industries case
(supra), the claim of the appellant that "Module Mounting
Structures" whether could be considered as part of 'Solar Power
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Generating System'. Sl. No.332 of the Notification No.12/2012-
Cus. dated 17.03.2012 allowed Non-conventional Energy Device
specified in List 8. The appellant claimed the parts as 'Solar
Power Generating System' where a specific mention about the
parts consumed within the factory and production of such parts
for manufacture of the goods specified at Sl. No.1 to 20 has
been prescribed. After analysing the entries, this Tribunal
observed as:
"14. It is not possible to accept this contention of the learned
counsel of the appellant. What has been exempted from payment
of central excise duty under serial no. 332 of the notification
dated17.03.2012 is 'non-conventional energy devices or systems'
specified in List 8. At serial number (10) of List 8, 'solar power
generating system' is mentioned. Serial number (21) of List 8
mentions 'parts consumed within the factory of production of such
parts for the manufacture of goods specified at serial numbers 1 to
20'. Only such parts are exempted from payment of central excise
duty which within the factory of production of such parts for the
manufacture of goods specified at serial numbers 1 to 20 and not
parts of water pumping station. It needs to be noted that entry
number (10) of List 8 mentions 'solar power generating system'
and not 'module mounting structures'.
...........
18. It is, therefore, not possible to accept the contention of learned counsel for the appellant that the module mounting structures' should be granted exemption from payment of excise duty in terms of the notification dated 17.03.2012 and not the 'solar power generating system'.
............
21. An exemption notification has to be strictly construed, as was observed by the Supreme Court in Commnr. of Customs (import), Mumbai versus M/s. Dilip Kumar and Ors. 2016 (5) TMI 185 - Supreme Court = 2018-TIOL-302-SC-CUS-CBand in Larsen & Toubro Ltd. versus Commissioner of Central Excise, Hyderabad 2015 (324) E.L.T. 646 (S.C.) = 2015-TIOL-236-SC-CX.
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22. The distinction sought to be drawn by the learned counsel for the appellant between 'devices' and 'systems' is not of relevance to the present case because both non-conventional energy devices or systems specified in List 8 are covered by the description of excisable goods."
13. Applying the principle laid down by the Tribunal in the aforesaid case to the facts and circumstances of the present case, we find the Appellant claimed exemption on the imported parts listed above under Sl. No.242 of the Notification 21/2002 Cus./ sr. no. 372 of Notification No. 12/2012cus which allows exemption to imported parts of 'specified goods' at List 22/17 referred in Sl. No.239/372 of the respective Notifications as the case may be, viz.
"3) Radio communication equipment including VHF, UHF and microwave communication equipment of the following description:-
(a) Base Transreceivers stations (BTS)"
In the instant case the use of imported parts were in the manufacture of Outdoor cabinets, which were cleared to M/s Ericson, who further uses the same in the manufacture and clears it to licensed Telecom service provider to be used as BTS. Needless to mention the principle strict interpretation has to be applied in extending the benefit of an exemption Notification as laid down by the Hon'ble Supreme Court in the case of Dilip Kumar and Co.'s case (supra).
14. Applying the said test, we are of the view that appellants are not eligible to the benefit of exemption Notification No.21/2002-Cus. dated 01.03.2002 as amended and Notification No.12/2012-Cus. dated 17.3.2012 for the imported parts, classifiable under various subheading of the Tariff Act, which in turn used in the manufacture of outdoor cabinets/Telecom Racks, which subsequently used by M/s Ericson in the Page 14 of 17 C/20523, 20530 ,20531, 20634/2014 & E/21866/2014 manufacture of BTS to Telecom service provider classifying the same BTS system.
15. The reference made by the learned advocate to the judgments of the Tribunal in Hutchison Essar South Ltd. case (supra) is not relevant to the facts of the present case in as much as the question involved in the said case was admissibility of exemption to antenna and also to installation materials imported be entitled to the benefit of Notification No.21/2002- Cus. dated 01.03.2002 against Sl. No.239 as part of all radio communication equipment used for cellular module telephone. This Tribunal held that "antenna and installation material (cables)" are entitled for the benefit of the Notification against Sl. No.3 of List 22 of Sl. No.239 of the said Notification No.21/2002-Cus. dated 01.03.2002. Also, the judgment cited by the learned advocate in support of their contention that parts of the parts are admissible to the benefit of the said Notification L.G. Electronics India Pt. Ltd. Vs. Commissioner of Customs, Mumbai, not applicable to the present case as the issue involved for determination in the said appeal was parts and components of the mobile handsets imported separately in SKD conditions whether would be eligible to exemption under Notification No.21/2002-Cus. dated 01.03.2002 as parts, components and accessories of mobile handsets including cellular phones. Similarly in the judgment of the Tribunal in the case of Mahendra Engineering Works (supra) where stampings and laminations used in the manufacture of electric motors or rotors which is used as parts and components in the manufacture of power-driven pumps under Notification No.236/1986 also not applicable to the facts of the present case. Similarly, the judgment of the Tribunal in the case of M/s. Racily Udyog, Shri Kalyan Das's case, whether battery is considered as a part of the Solar Power Generating System, is not applicable to the present case as the Solar power batteries are directly used in the Solar Power Generating System and not Page 15 of 17 C/20523, 20530 ,20531, 20634/2014 & E/21866/2014 undergone further manufacture to be used in the Solar Power Generating System.
16. On the issue of limitation, we find that the appellant has been importing the said materials declaring the description of the goods correctly mentioned as above classifying the same under respective Tariff Heading. For example, in the Bill of Entry dated 24.07.2012: imported item was "Radial Fan"; Bill of Entry dated 14.04.2012: CS Door Stay (Steel); Bill of Entry dated 16.4.2012; Temperature Control Module and subsequently obtained necessary permission under Annexure-III to manufacture outdoor cabinets/Telecom Racks from the department indicating relevant Notification number and its declaration as "to use the said imported air filter elements for the manufacture of parts of Telecom Racks" and necessary endorsement and counter signature obtained in the said application from the Central Excise authorities. Therefore, no facts was suppressed from the knowledge of the department about import of the said parts and its use in the manufacture of outdoor cabinets/Telecom Racks by the Appellant which had been cleared to M/s Ericson as part of BTS system.; therefore, invoking extended period of limitation in confirming the demand cannot be sustained. Consequently, imposition of penalty on the appellant and personal penalty on individuals also not warranted and accordingly are set aside.
17. Since it is held that the appellants are not eligible to avail the benefit of Notification No. 21/2002 Cus. & 12/2012 Cus. with regard to the imported goods used in the manufacture of outdoor cabinet, the application by the appellant in compliance with Condition 5 of the said Notifications read with Import of Goods at Concessional Rate for Manufacture of Excisable Goods (IGCRME) Rules, 1996 has been rightly denied by the lower authorities.
Page 16 of 17C/20523, 20530 ,20531, 20634/2014 & E/21866/2014
18. In the result, the denial of the benefit of the Notification No.21/2002 Cus. & 12/2012 Cus. is upheld; the demand for the extended period is set aside and the demand with interest be restricted to the normal period. Consequently, the Appeal No. C/20523/2014 and E/21866/2014 are disposed of on above terms and appeal Nos. C/20530, 20531, 20634/2014 are allowed.
(Order pronounced in Open Court on 23.08.2024.) (D.M. MISRA) MEMBER (JUDICIAL) (R BHAGYA DEVI) MEMBER (TECHNICAL) RV Page 17 of 17