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2019-VIL-230-CESTAT-MUM-CU

CUSTOMS CESTAT Case

Customs - Revenue appeal against the impugned order holding that the subject device is not classifiable as an Automatic Data Processing Machine and is appropriately classifiable as a mobile telephone under CTH 85171290 - Tablet PC or mobile telephone – HELD - the findings recorded by the Commissioner for ignoring the size of the item imported and trade parlance of the same cannot be sustained. The applicability of the Circular 17/2007-Cus relied upon by the Commissioner has to be determined after taking into account the size/ dimensions of the imported item and also the trade understanding of the same - the order of Commissioner has been passed without application of mind. In the entire order he goes on rejecting the contentions raised by the respondents-assessee for claiming classification under CTH 8517 but finally decides the classification as claimed by them. He has failed to consider the manner in which the respondents-company have positioned themselves in the market vis a vis the imported item. In their own literature, they describe the products stating “Tablet with support for GSM voice communication, SMS and MMS”. Thus respondents have entered the market describing the product as Tablet with support for GSM voice Communication. This is enough to hold that voice communication is secondary function to the Tablet functions. When the respondents themselves hold that Tablet function is predominant, any finding rendered by the Commissioner to the contrary cannot survive - From the reading of Chapter Note 5(A) to Chapter 84, it is quite evident that the goods in question are nothing but an Automatic Data Processing Machine - the order of Commissioner and set aside and the matter is remanded back to the adjudicating authority - the appeal filed by the revenue is allowed by remand

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