- (1.) THE Respondent/assessee herein which is engaged in the business of telecommunication system, imported what is known as 'Base Transreceiver Station (BTS) and Microwave Communication Equipments. In the present appeal, however, we are concerned with BTS equipments imported. The Assessee filed Bill of Entry disclosing the price of BTS and at the same time claimed benefit of Notification No. 21/2002, dated 1 -8 -2002 (Serial No. 239) and paid concessional rate of duty i.e. @ of 5%, as such. However, the Appellant/Revenue thereafter found that along with the said BTS the Assessee had also imported Antenna as well as installation cable. The Adjudicating Authority was of the opinion that insofar as Antenna and installation cable are concerned, they are not covered by Serial No. 239 of Notification No. 21 of 2002 but no separate Bill of Entry was filed which attracts duty @ of 10%. On that basis, various show cause notices were served upon the Assessee calling upon the Assessee to pay differential rate of duty on the Antenna and installation cable. The Assessee replied the same by contending that the Antenna as well as installation cable were integral parts of the BTS and were imported together under the same provisions and the price was also declared. On that basis, it was submitted that the demand covered at Serial No. 239 of Notification No. 21/2002 could not be segregated for the purpose of levy of import duty. The contention of the Assessee was not accepted and Order -in -Original was passed calling upon the Assessee to pay the differential duty along with penalty and interest. The Assessee filed appeals against the order of the Adjudicating Authority before the Commissioner. The Commissioner confirmed the order of the Adjudicating Authority. Not satisfied with the outcome, the Assessee preferred further appeals before the Customs, Excise & Service Tax Appellate Tribunal (CESTAT). The CESTAT has allowed the appeals of the Assessee by a common decision dated 6 -7 -2005 [ : 2006 (193) E.L.T. 81 (Tri. -Bang.)]. Being aggrieved, the Revenue has filed this appeal challenging the veracity of the decision given by the CESTAT. Mr. Yashank Adhyaru, learned senior Counsel appearing for the Revenue, took us through the various provisions of Notification No. 21/2002 and tried to demonstrate that as far as installation cable and Antenna are concerned they had to be assessed separately. We would like to reproduce the relevant portion of Notification No. 21 of 2002 which reads as under:
(2.) ENTRY No. 239 covers Chapter Headings 84, 85 or 90 and the goods mentioned there are the one specified in List 22. These goods are meant for basic telephone service, cellular mobile telephone service, internet service etc. It is not in dispute that the goods in question imported by the Assessee were for cellular mobile telephone service. If the goods are covered under Entry No. 239, the duty payable is 5% with additional duty @ of 16%. It is further mentioned that the same goods are covered under Condition 47. Condition 47 mentioned in the same Notification reads as under: 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. Likewise, List 22 which mentions goods that are to be covered under Entry No. 239, annexed with the same Notification, reads as under: (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 (7) Automatic call distribution system (8) Transcoders (9) Test equipment.
(3.) IT was argued by Mr. Adhyaru that in List 22, the items which are mentioned do not include installation cable or other installation features. It was further submitted that as far as Antenna is concerned, it is specifically covered under Entry No. 317 that has already been reproduced above and the duty payable in respect of Antenna is 10%.;