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TMI Blog2017 (4) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... icating authority should have considered the submission of the appellant in its correct perspective as appellant has procured the S-VHS recorder/player and produced the same before the adjudicating authority. Instead of deciding the issue on facts by ascertaining whether the cassettes are compatible with S-VHS recorder/player, adjudicating authority decided the issue on technicality. The decision of Tribunal in the case of Phil Corporation [2000 (11) TMI 683 - CEGAT, MUMBAI] squarely covers the issue, as in that case also similar cassettes were imported and the same objections were raised, while allowing appeal of the appellant-importer Tribunal held that the goods imported are freely importable - the two decisions of Tribunal categorica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was restricted and not permitted to be imported except against a license or Public Notice issued in this behalf. The said Importers were found to be not in possession of a valid license for the video cassettes which were claimed by them to be falling under the heading 8523.90 of the Customs Tariff whose corresponding classification under the ITC (HS) code was 852390.09, as mentioned above. The said importers were informed of the aforesaid position. The said importers vide their letter dated 10/02/1999 communicated to the department that they were not aware that the importation of the aforesaid video cassettes required a specific license and further stated that since they did not have a license, the matter may be adjudicated without issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redemption fine and further penalty under Section 112 of Customs Act 1962. 4. Learned Counsel took the bench through the entire records. He draws our attention to the fact that they had demonstrated that the goods imported are suitable to work with S-VHS, which is one of the specified recorders was per ITC policy and the goods imported are free. He would draw our attention to the relevant heading of the policy. He would submit that similar goods were imported and the same issue came up before the Tribunal in the case of Phil Corporation Ltd v. Commissioner of Central Excise, Goa 2001 (134) ELT 206 wherein it was held that the goods imported are freely importable. It is his submission that same view is taken by Tribunal in another ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic Notice issued in this behalf. 9. It is the case of importer-appellant that the goods will fall under category of freely importable ones, while department's view is otherwise. adjudicating authority in the impugned order has come to a conclusion that since width of the cassettes is not mentioned as any documents and even the examination report does not indicate the width as also that this point was not taken during the earlier proceedings, the goods fall under the category of restricted goods. We find that the adjudicating authority has erred in coming to such a conclusion for more than one reason. 10. Firstly, we find that in the remand proceedings, during the personal hearing dated 12/05/2006, the importer-ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -VHS VCR S-VHS recording cannot be replayed via a VHS machine unless it happens to have a S-VHS facility. What this extract means is that the cassettes under contest can be recorded in a VHS VCR and can be played back therein. They can also be recorded in a S-VHS recorder and can be played back therein but where a cassette is recorded in a S-VHS cassette recorder/it cannot be played back in the normal VHS machine. 13. This remark is not at all sufficient for the Commissioner to have drawn an inadverse inference. The logic is reflected in paragraph 6 of his order which is reproduced below in its entirety : Notwithstanding the above, I have had the matter considered independently with reference to particulars given in Video C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuing such certificates. It is significant to note that the show cause notice does not lead any evidence to support the opinion of the department that the ITS(HS) classification as produced by the importers was not appropriate. 15. We find that in both the appeals, the Commissioner had erred in holding that the cassettes were not freely importable. Therefore, the order of confiscation of cassettes under Section 111(d) of the Act does not survive. We also note that similar views were expressed by bench in the case of Quick International (supra). 5. After carefully considering the submissions from both sides and on perusal of the available evidence on record, we find greater force in the arguments of the learned Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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