By TIOL News Service

MUMBAI, FEB 21, 2013: THE appellant filed bills of entry for import of ‘flash memory cards' under CTH no. 8523 5100 and claimed exemption under notification no. 24/05-Cus dated 1.3.2005 and concessional CVD of 4% under notification 6/2006-CE dated 1.3.2006. The concessional rate of CVD was denied by the original adjudicating authority on the ground that the flash memory card imported by the appellant did not have any plug to function or serve as a plug-in-device and the goods were mostly and widely used in cell phones and cameras.

The appellant preferred an appeal before the lower appellate authority. The lower appellate authority held that the notification refers to "Flash memory" meant for external use with a computer as plug-in-device and not to flash memory card and flash memory is only a component or a part used in the flash memory and, therefore, the benefit of exemption would not be available.

Hence the appellant is before the CESTAT.

It is submitted that the flash memory card imported by the appellant is the same product as specified in the notification "flash memory" which falls under CTH 8523 5100 and it is meant for external use with a computer or a laptop as a plug-in-device. The appellant also produced the product literature relating to the impugned goods which showed that the product under importation is a solid state digital memory card having no moving parts and it is a device which can be externally plugged into a computer or a laptop in addition to other devices such as mobile phones and cameras. It is further submitted that a plug-in-device need not necessarily have a separate plug mechanism and so long as it can be fitted in to provide an electric connection, it would be eligible for the benefit of the notification.

The Revenue representative reiterated the finding of the lower authorities.

The bench after extracting the entry no. 17 in the notification 6/2006-CE wherein the goods "Flash memory" is mentioned observed -

"5. …Heading 8523 5100 covers "solid state non-volatile storage device." There is no dispute of the fact that the item under importation is a solid state non-volatile storage device. The only dispute is that whether flash memory and flash memory card are the same or are they different. The Notification refers to flash memory meant for external use with a computer or laptop a plug-in-device. The goods under importation satisfy this description. Therefore, the argument of the lower appellate authority that flash memory and flash memory cards are different items has no sound technical basis. The product literature available on record clearly indicates that the item under importation is a solid state memory card and is meant for external use with a computer or laptop as a plug-in-device. The product literature further states that these cards can be plugged in without the need for an adapter. Thus, from the product literature, it is clear that the product under importation satisfies the description given on the Notification."

In fine, the order passed by the lower authority was set aside and the appeal allowed with consequential relief.

(See 2013-TIOL-341-CESTAT-MUM)