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TMI Blog2003 (3) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... 27-3-98 and sought clearance of the same under CTH 9010 90 while the department has held that the item in question falls under CTH 940540 00 which covers lamps and light fittings, where import is restricted and ordered confiscation of the same with option to redeem the same on payment of fine of Rs. 7,00,000/- holding that the importers have failed to produce specific licence for importing the offending goods. 3. The appellants assail the impugned order on the ground that the goods imported have been correctly classified by them under CTH 9010900 and the goods fall under the OGL category and are not electric lamps and light fittings falling under CTH 94054000. The goods are equipments which are more in the nature of accessories to audio and video equipments. 4. Shri G. Seetharaman, learned Consultant appearing for the appellants submitted that the appellants have imported the goods on the bona fide belief that they are not consumer goods whereas in terms of CTH 94.05.40 consumer goods are not permitted to be imported except against a licence or in accordance with the public notice issued in that behalf. Admittedly the goods in the present case is not consumer goods. The goods i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have produced valid licence for importation and in the absence of the same, the goods have been rightly confiscated. He sought for dismissal of the appeal. 7. We have considered the submissions made before us and gone through the case records including the catalogue and the additional written submissions made by the appellants. In this case the appellants have imported the goods viz. Lighting Equipment for Cinematographic Studio. According to the appellants the goods fall under CTH 901090 while the department classified the goods under CTH 94054000. In order to have a better appreciation of the facts, we reproduce below the relevant entries in the tariff : 90.10 Apparatus and equipment for photographic (including cinematographic) laboratories (including apparatus for the projection or drawing of circuit patterns on sen sitised semi-conductor materials), not specified or included elsewhere in this Chapter; negatoscopes; projection screens 9010.10 - Apparatus and equipment for automat ically developing photographic (includ ing cinematographic) film or paper in rolls or (or automatically exposing developed film to rolls of photographic pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree that the goods are spot lights but not ordinary spot lights or light fittings. In view of the above, we are of the considered opinion that the goods have been rightly confiscated and we uphold the same. Appellants have cited the decision in the case of Transfreight Containers Ltd. v. CC, Mumbai reported in 1998 (102) E.L.T. 410 which dealt with whether tarpaulines are consumer goods or not. They have also relied upon the decision in the case of Standard Chartered Bank v. CC, Mumbai reported in 1999 (107) E.L.T. 446 wherein recording system - 32 channel dual deck voice logging system was imported and it was held that the equipment is more in the nature of professional equipment and not meant for use by individual consumer. The facts and circumstances of these two decisions are not similar to the facts in the present case and hence they are not applicable to the present appeal. However, in the facts and circumstances of the case, we are inclined to think that interests of justice would be served if the redemption fine is reduced to Rs. 2.5 lakhs (Rupees Two lakhs and Fifty thousand) and we order accordingly. 8. As regards imposition of penalty is concerned, no mens rea has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the item in question being subject goods for the purpose of cinematographic studio, it does not fall within the ambit of consumer goods. They contended that there is no offence committed and hence they are not liable to be confiscated for the purpose of fine and penalty. They relied on the catalogue which, on examination, disclosed that the items are specifically manufactured for cinematographic studio as parts of accessories of apparatus and equipment for cinematographic laboratories and they are not complete cinetomatographic photo equipment for the purpose of classification under Heading 9405.40 as held by the authorities below. Therefore in terms of the catalogue produced, it is very clear that the item is not classifiable under 9405.40 as other electric lamps and light fittings, as classified by the department and to be treated as consumer goods for the purpose of licensing under the ITC (HS) classification. On examination of the literature, it is very clear that the item is not an ordinary lamp and lighting fitting for classification under chapter heading 94.05. The HSN notes also supports the appellant s plea that they are equipments for cinematographic studio and it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the heading specifically excludes photographic included cinematographic such as light apparatus, spot lights, Electric lighting lamps and tubes of all kinds. In this context, she has specifically drew my attention to the chapter Note (i)(j) Chapter Heading 90 wherein it has been specifically excluded search and spot lights falling under Heading 94.05. 18. Since Shri G. Seetharaman, Ld. Consultant appearing for the assessee tried to convince me submitted that the item in question cannot be considered as search light or spot light as envisaged under Chapter heading 940540 but in vain. 19. I have gone through the explanations offered by both sides with reference to the tariff entry. I find that the items are appropriately classifiable under heading 9405.40 as it was contended by the Revenue. Based upon the classification of the products in question by Member (Technical) has reduced the redemption fine and set aside the penalty while Member (Judicial) has held that the appeal deserves to be allowed with consequential relief. In the facts and circumstances of the appeal and in view of the fact that the item is more appropriately classifiable under Chapter heading 94. I find that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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