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TMI Blog2015 (4) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... , in a nutshell, are as hereunder :- The appellant/assessee imported toys, viz., Talking Parrot classifying the goods under Bill of Entry No.28747 dated 3.6.97 under tariff heading 950380.01. The appraising group was of the view that the said goods is covered by Exim Code No.950349.09 and that it needed a Specific Import Licence. The plea of the appellant/importer is that the goods classified under tariff heading 950380.01 under exim code as 'other toys and models incorporating motor', though restricted, are allowed to be cleared under Special Import Licence. The Department took the view that specific import licence should be obtained for import of the said goods. The adjudicating authority was of the view that the goods imported a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronics (2006 (200) ELT 31 (Tri. LB)), wherein the Larger Bench of the Tribunal came to hold as under :- "9. It will be noticed from the Exim Code of the relevant period that under the category of Toys representing animals or non-human creatures , such toys which are other than stuffed fall under sub-heading 950349.00. Under that sub-heading, the import of toys of wood (950349.01) was free; import of toys of metal (950349.02) was restricted; import of other toys of plastic (950349.03), excluding 950310-950341, was restricted; and the import of Others (953049.09 i.e., other than those falling in the preceding entries of the sub-heading 950349.00 was also restricted. Import of other toys and models, incorporating a motor (950380.01) was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The importer (respondent) wanted the item to be classified under ITC (HS) Heading 9503 80.01. This claim has been rejected by the Larger Bench. Goods falling under ITC (HS) Heading 9503 49.09 were restricted for import during the material period. They were not importable otherwise than under specific licence. As the respondents did not produce any such licence, the original authority confiscated the goods under Section 111 (d) of the Customs Act with option for redemption on payment of fine of Rs. 6.80 Lakhs. The authority also imposed a penalty of Rs. 68,000/- on the party. This decision of the original authority was set aside by the learned Commissioner (Appeals), who chose to classify the goods under ITC (HS) Heading 9503 80.01, for whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three questions of law for consideration in this appeal, however, at the time of argument, he conceded that he is not canvassing those questions of law and would be satisfied if the penalty is set aside. In view of the said statement, this Court is not considering those questions of law, but is deciding the issue only on the question of penalty. 10. In Akbar Badruddin's case (supra), the Supreme Court had occasion to consider the issue of penalty imposed in similar circumstances and in the said decision held as under :- "Before we conclude it is relevant to mention in this connection that even if it is taken for argument s sake that the imported article is marble falling within Entry 62 of Appendix 2, the burden lies on the customs d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard of its obligation; but not, in cases where there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute." 11. Keeping the above principles as laid down by the Apex Court in mind, the only question that requires consideration by this Court in the present case is whether penalty levied by the department in the facts and circumstances of the instant case is justified. 12. On a careful scrutiny of the papers available on record, it is evident that during the entire proceedings the assessee/importer was trying to prove the classification of goods imported in its favour. While the Commissioner (Appeals) dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y within the parameters as propounded by the Supreme Court in Akbar Badurddin's case (supra). However, the above aspect has been lost sight of by the Tribunal while confirming the order of the original authority in its entirety, which according to this Court, is per se not correct. Therefore, this Court is of the considered view that the penalty, as imposed on the appellant/assessee is not justified in the facts of the present case, which the Tribunal failed to set aside. For the above reasons, the issue is answered in favour of the appellant/assessee holding that no penalty is leviable on the facts of the present case and to that extent the order passed by the Tribunal is liable to be modified. 16. In the result, this appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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