Order date: 12 October 2022

Facts:

• The Appellant, M/s Bharti Airtel Ltd, filed 51 Bills of Entry, for the clearance of the antenna for base station claiming classification under CTH 85177090. These Bills of Entry were reassessed without any speaking order as per Section 17(5) of the Custom Act, 1962 and the classification as claimed by the respondents was modified to 85176290.
• Speaking Order dated 12.05.2020, reassessing the imported goods as stated above the assessment made on the Bills of Entry by the proper officer were challenged by the appellant before the Commissioner (Appeals) who by the impugned order, rejected the appeal and denied the classification as claimed by the importers while filing the Bill of Entries.
• Appellant contended that the Tariff itself recognized that Antenna are not in themselves, complete apparatus for transmission or reception of radio telephony but are only parts of the apparatus for transmission and reception of radio telephony.
• Further, with effect from 01.01.2007, Base Stations which are transmission and reception apparatus used in radio telephony (Cellular network) stood covered under Heading 8517 61 00 and Antenna for such Base Stations, being parts stood covered under Heading 8517 70 which specifically mentions "Parts".

Issue:

• Whether "Antenna" for Base Station is classifiable as “Part" under CTSH 8517 7090 or as a "Machine for reception, conversion, and transmission or regeneration of voice, images or other data” under CTSH 851762 90 ?

Order:

• The authorities observed that this issue was again considered by the Tribunal in case of Reliance Jio Infocomm vide the order reported at [2022- TIOL- 604-CESTAT-Mum] and the bench dismissed the appeals filed by revenue by stating that the manufacturer of antenna as well as the chartered engineer's certificate, in clear terms clarified that the antenna in question transmits and receives only signals and not performing any other function like conversion or regeneration of voice, images or other data signals and switching/routing of signals. 
• Therefore, the antenna stand alone cannot be considered as a 'machine', attracting classification under Heading 8517.62. Consequently, the observation of the department in the circular dated 15-1-2018 that the Antenna itself is a complete device and has capability of functioning on its own of conversion of electrical signals into electromagnetic waves and vice versa in a wireless communication system cannot be applied to the present goods as it would be complete only when connected to a base station. In the event if the antenna so designed, instead of working as a passive element, besides the above function, it also performs some more functions as in the case of other entries under the same category, its classification under sub-heading 8517 62 may be attracted considering the same as an independent of 'machine'.
• Therefore, antenna since parts of BTS, as held by Hon'ble Supreme Court in Hutchison Essar South Ltd.'s case, be classified as "parts" under Tariff Item 8517.70.90.
• In the said case, it was also observed that the Department could not support their contention. No technical literature was submitted; in spite of the fact that the imports have been taking place over a period of time.
• In view of the aforesaid decision, the instant appeal was allowed.