9911796707
TMI Blog2023 (3) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... era . All the cameras which are digital cameras get classified under this heading. Further revenue do not dispute that the goods covered by the referred bill of entries are action cameras . In para 7 of the impugned order specific finding has been recorded to this effect. In case of Panam Corporation [ 2020 (2) TMI 1434 - CESTAT MUMBAI ] for the period prior to insertion of the Explanation in 2012, tribunal refused to restrict the meaning given to the phrase Digital Still Image Video Cameras and allowed the benefit of exemption at Sl No 13 of 2005 notification. The findings recorded in the impugned order not agreed upon, to the effect that the phrases used in the Notification No 50/2017-Cus at Sl No 502 has to be interpreted in light of the Explanation which was there in some other Notification at any point of time, the interpretation of the Notification wherein explanation was given defining the phrase Digital Still Image Video Cameras need not be examined. The said explanation cannot be used to restrict the phrase used in the notification under consideration. If government intended that the said phrase should have been interpreted according to the explanation cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2020, Customs Appeal No. 85276 of 2020, Customs Appeal No. 85291 of 2020, Customs Appeal No. 85292 of 2020, Customs Appeal No. 85293 of 2020, Customs Appeal No. 85294 of 2020, Customs Appeal No. 85295 of 2020, Customs Appeal No. 85296 of 2020, Customs Appeal No. 85297 of 2020, Customs Appeal No. 85298 of 2020,Customs Appeal No. 85299 of 2020, Customs Appeal No. 85300 of 2020, Customs Appeal No. 85301 of 2020, Customs Appeal No. 85302 of 2020, Customs Appeal No. 85303 of 2020, Customs Appeal No. 85380 of 2020, Customs Appeal No. 85381 of 2020, Customs Appeal No. 85382 of 2020, Customs Appeal No. 85383 of 2020, Customs Appeal No. 85384 of 2020, Customs Appeal No. 85385 of 2020, Customs Appeal No. 85386 of 2020, Customs Appeal No. 85387 of 2020, Customs Appeal No. 85997 of 2020, Customs Appeal No. 85998 of 2020, Customs Appeal No. 85999 of 2020, Customs Appeal No. 86000 of 2020, Customs Appeal No. 86001 of 2020, Customs Appeal No. 86002 of 2020, Customs Appeal No. 86003 of 2020, Customs Appeal No. 86004 of 2020, Customs Appeal No. 86005 of 2020, Customs Appeal No. 86006 of 2020, Customs Appeal No. 86007 of 2020, Customs Appeal No. 86013 of 2020,, Customs Appeal No. 86015 of 2020, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired under Section 17 (5) of The Customs Act, 1962 despite the request made. 2.4 Appeals filed by the appellant against the re assessment done by the assessing officers were dismissed by the Commissioner (Appeal) vide the impugned order in appeals dated 22.11.2019, 02.012020, 13.07.2020, 19.10.2020 and 04.07.2022 upholding the re assessment made by the assessing officer holding the goods to be classifiable under Heading No 85258090 and denying the exemption claimed. 2.5 Appeals filed by the appellant were vide the impugned order in appeal dated 04.07.2022 at, were disposed of Commissioner (Appeal) remanding the matter back to assessing officer for passing the speaking order as per Section 17 (5) of the Customs Act, 1962. 2.6 Appellant have filed the application for early hearing in the three appeal filed in the year 2022, stating that the appeals filed by them for the earlier period are coming up for hearing, and matter in their own case has been decided by the tribunal vide Final Orders No. A/85606-85642/2020 dated 17.7.2020. taking note of the submissions made the applications for early hearing are allowed and all the appeals are taken up for hearing together. 3.1 W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and moving images (video), fall under Tariff Item 8525 8020 as digital cameras. In the notification claimed by them, there is no explanation within Sr. No.502 of Notification No.50/17-Cus., similar to what is present in Sr. No. 13 of Notification No.25/05-Cus Digital still image video cameras . Therefore, the said Notification is a Customs Notification and not a ITA notification and no requirement of Equipment Type Approval (ETA) is required for the said product as stated by the AR. Further, there is no mention about ITA notification or ETA approval requirement in the impugned order. Therefore, adjudicating authority cannot act beyond the order of appellate authority as held in the case of Adani Enterprises Ltd [2015 (324) E.L.T. 461 (Mad.)] Hon'ble Supreme Court in Tata Teleservices case - 2006 (194) ELT 11 has held that circular cannot impose a restriction or limitation which is not there in the notification. Also refer to Inter Continental (India) Vs. UOI - 2003 ELT (154) 37 (Guj.) which stands affirmed by the Hon'ble Supreme Court. Reliance on referral order in M/s Nikon India Pvt. Ltd. Versus Commissioner of Customs (Imports) New Custom House, New Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rseded vide now exiting notification no. 50/2017-Cus dated 30.06.2017. This may be seen from the first page of notification no. 50/2017-cus available in all appeals. Notification no. 25/2005-Cus dated 01.03.2005 and erstwhile notification no. 12/2012-Cus dated 17.03.2012 were parallels and were available to the impugned goods. It was also the similar situation at least from 01.03.2005. As in 2005, the erstwhile notification 02/2002-cus was running parallel to notification no. 25/2005-Cus. The Notification No. 02/2002-Cus was superseded by Notification No. 12/2012-Cus dated 17.03.2012 and now the Notification no. 12/2012-Cus is superseded by Notification no. 50/2017-Cus dated 30.06.2017. Thus it is submitted that for impugned goods there were parallel notifications available from 2005 onward. The parallel notification was available, because, the notification no. 50/2017-Cus is for general exemption to almost for all items coved by full tariff , but the notification no. 25/2005-Cus was issued for specific products of information technology, issued in compliance of WTO requirements. Circular no. 32/2007-Cus, was issued in reference to the Notification no. 25/2005-Cus, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inch display, which can fold in the front or back. The Light Mod is waterproof up to 10m and helps brighten the scene or your face when vlogging in low light. The big highlight is HyperSmooth 2.0 which promises even smoother video compared to the Hero 7 Black. There's a Boost mode which, crops the frame a bit more for even more aggressive stabilisation. HyperSmooth 2.0 is available with all shooting modes. Another feature that has been brought over from the Hero 7 Black is the Time Warp, which automatically adjusts the speed of the footage based on the data that is being captured by the camera's custom GP1 sensor. The user of the impugned goods can even tap on the display in between the Time Warp to capture real-time footage to focus on something. The interface has been redesigned a bit for easier accessibility. The user of the impugned goods can now easily switch between different fields of view or Digital Lenses' as GoPro calls it; create up to 10 presets for various types of activity which are typically captured; Horizon Levelling for a cinematic effect and TimeWarp 2.0 lets the videographer vary the speed of the hyperlapse video when he needs it, by s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus, it should be used to examine the issue in hand. Further, the Board Circular 32/2007 dated 10.09.2007 has also deliberated upon the specification of the Digital Still image Video camera . According to the said Circular; the digital cameras those record still images on Video format are covered under the description of the exemption entry i. e. Digital Still image Video camera The digital cameras with still image recording as its principal function; Also include those digital Cameras that have the capability of recording moving images for a limited period of time. The explanation in Notification No.15/2012 dated 17.03.2012 has been provided which clarifies that digital still image video camera means a digital camera not capable of recording video with minimum resolution of 800 x 600 pixels, at minimum 23 frames per second, for at least 30 minutes in a single sequence using the maximum storage (including expanded) capacity ; In the instant appeals the classification of the said product under CTH 85258020 as claimed by the Appellant is the issue under dispute. The Department s contention is the product is classifiable under residual CTH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to this Other category. Following characteristics of the Action camera differentiates it from the common digital still image video cameras. Field of view- It is the angle which the lens covers. A 28mm wide angle lens covers about 63degrees whereas the Action cameras cover about an angle of 150 degree. That is one of the reasons why the still photographs shot with Action cameras suffer from Fish eye distortion. The standard digital cameras come with lens ranging from 18 to 50 mm for the point and shoot cameras. For DSLRs the standard lens starts at 50mm. The normal wide-angle lenses start at 18mm lens. But the GoPro action cameras come with distinctive ultra-wide-angle fisheye look. Frame per Second- The finest of the common Digital Still image Video cameras boast of 10/12 Frame per second. Even the standard Video Cameras shoot with 24 per second. The worldwide standard frame rate for motion picture projection is 24 FPS. But the Action camera Gopro 8shoot with maximum240 frame per second. Bit rate- Bit Rate is the amount of data encoded per second when you shoot video. The higher the bit rate, the higher the quality of your video. The bitrate for the Hero ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cameras are different from the common digital cameras and video cameras. This is well supported by the commercial or Trade perception of the impugned product. Common Parlance Test is the most common test used for classification of goods for Levy of Tax. Reliance is placed on the decision in case of United Offset Process Pvt. Ltd. [1989 Supp.(1) SCC 131], Porritts Spencer (Asia) Ltd. A [1979 AIR 300, 1979 SCR (1) 545], Dunlop India Ltd. [[1976] 2 SCC 241], In the instant appeal the Department has also adhered to that contention that digital camera having the facility to record video for more than 30 minutes cannot be classified as digital camera under CTH Subheading 85258020 as they fall into category of Video Camera. Acceptance of Appellant stance that since the impugned product is a digital camera and hence, classifiable under CTH 85258020 will make the CTH subheading 85258030otiose because; Revenue submits the Doctrine of Harmonious interpretation does not envisage any interpretation of a provision of a statute which would make another provision of the statute dead or otiose. Hon ble Supreme Court in case of Hindustan Bulk Carriers laid down five principles o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation Nos 25/2005 or 50/2017-cus granted exemption to DSC and it referred Tariff Item 85258020- undersigned agree with this submission provided the instant goods are DSC i.e their principal function is of taking Still Images and all the specification are as per the explanation given in the description of the ITA notification no. 25/2005-Cus(SI no. 13). Undersigned again reiterate that impugned goods principal function is taking motion picture at higher frame rate per second and have feature to recording video in single sequence more than 30 minutes i.e video and it has specification of all the goods classifiable under CTI 85258010, 85258020 and 85258030, thus in terms of Section XVI, note 3 of Customs Tariff Act, said goods are classifiable under CTI 852580290 as others. as long as it is undisputed fact that it is ITA product and if it is proved that its specification are of taking still image , there is no dispute. But if it violates any of the conditions of the explanation as given in the 25/2005-cus, it should not be considered as DSC. It is also not disputed by appellant that it violates the limitation of taking video in single sequence upto 30 minutes. Hon ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r CTH 85254000 and were exempted from BCD vide Notification No. 25/2005- Cus dtd. 01.03.2005 at Sr. No. 13. Further amendment had been made in the said. notification vide notification 15/2012 dated 17.03.2012 vide which Digital still image video cameras had been explained in the following manner: Explanation. - For the purposes of this entry, digital still image video camera means a digital camera not capable of recording video with minimum resolution of 800 x 600 pixels, at minimum 23 frames per second, for at least 30 minutes in a single sequence using the maximum storage including expanded) capacity' . Therefore a 'Digital still image video camera' requires to meets all the three conditions as provided in explanation to qualify for CTH 85258020 under the current Tariff heading and consequential BCD exemption under Notification No. 50/2017 (Sr. No. 502) or the same can be denied if any of the condition is not fulfilled. I find that the basic function of a digital still image video camera is to shoot still images but at the same it may shoot or record video film which of course would be of small length in comparison to video camera which is commonly kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification dated 01.03.2005, as amended by the notification dated 17.03.2012, whereby an 'Explanation' was added; (ii) Whether the Tribunal, in the decision rendered on 19.12.2017, has correctly interpreted the scope of 'Explanation'. 4.6 In the present case we are neither concerned with the exemption notification dated 01.03.2005 as amended by the notification dated 17.03.2012 nor with the explanation inserted by the amending notification. None of the issue which has been referred by the Delhi Bench is involved in the present case and hence we do not find any reason to keep these appeal is abeyance awaiting the decision of larger bench. 4.7 The chapter headings from the tariff are reproduced below: 8525 Transmission apparatus for radio-broadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras, digital cameras and video camera recorders. 852580 - Television cameras, digital cameras and video camera recorders 85258010 --- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DEO CAMERA RECORDERS This group covers cameras that capture images and convert them into an electronic signal that is : (1) Transmitted as a video image to a location outside the camera for viewing or remote recording (i.e. television cameras); or (2) Recorded in the camera as a still image or as a motion picture (i.e. digital camera and video camera recorders). Many of the cameras of this heading may physically resemble the photographic cameras of Heading 90.06 or the cinematographic cameras of Heading 90.07. The cameras in Heading 85.25 and the cameras in Chapter 90 typically include optical lenses to focus the image on a light-sensitive medium and adjustments to vary the amount of light entering the camera. However, photographic and cinematographic cameras of Chapter 90 expose images onto photographic film of Chapter 37, while the cameras of this heading convert the images into analogue or digital data. . . . . In digital cameras and video camera recorders, images are recorded onto an internal storage device or onto media (e.g. magnetic tape, optical media, semiconductor media or other media of Heading 85.23). They may include an analogue/d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m or on interchangeable media. In general, the digital video camera recorders of these subheadings have the design which differs from digital cameras of subheading 8525 80 30. They often have a foldable viewfinder and are frequently presented together with a remote control. They always offer an optical zoom function during video recording. These digital video camera recorders may also have still image recording capability. Digital cameras are excluded from these subheadings if they are not capable, using the maximum storage capacity, of recording, in a quality of 800 600 pixels (or higher) at 23 frames per second (or higher) at least 30 minutes in a single sequence of video. 8525 80 99 Other This subheading covers video camera recorders (socalled camcorders ) for the recording not only of sound and images taken by the camera but also of signals from external sources, for example, DVD-players, automatic data-processing machines or television receivers. The images thus recorded can be reproduced by means of an external television receiver or monitor. This subheading also includes camcorders in which the video i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.10 Classification is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. From the plain reading of the heading 85258020, it is quite evident that for classification under this heading the goods under question should be a Digital Camera and the terms of the heading are not restricted to Digital Still Image Video Camera . All the cameras which are digital cameras get classified under this heading. Further revenue do not dispute that the goods covered by the above referred bill of entries are action cameras . In para 7 of the impugned order specific finding has been recorded to this effect. As per article available on Wikipedia (https://en.wikipedia.org/wiki/Action_camera assessed on 10.02.2023) following is explained about the action cameras: An action camera or action cam is a digital camera designed for recording action while being immersed in it. Action cameras are therefore typically compact and rugged, and waterproof at surface-level. They typically use CMOS image sensor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the entry in the tariff is not identical to the wordings used in the exemption notification. The tariff classifies all the Digital cameras 85258020 unlike USITC of United States of America or Combined Nomenclature of European Union. Accordingly on the issue of classification we clear in our view that the classification of the imported action cameras by the appellants of the models as indicated in table in para 1 will be under CTH 85258020, at the relevant time. 4.11 Our view is in line with the view expressed by the tribunal earlier in the case of appellant holding as follows: 8.3 For the period up to the year 2005-06, still image video cameras and video camera recorders ; digital cameras were classified under Tariff Item 8525 40 00 of the First Schedule to the Customs Tariff Act, 1975 (CTA). However, in the year 2006- 07, the Tariff Item was aligned with the Harmonised System of Nomenclature (HSN). As a result of the alignment, digital still image video cameras came to be classified under Tariff Item 8525 80 20 and video camera recorders were classified under Tariff Item 8525 80 30 of the CTH. With regard to proper classification of digital still im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sified in accordance with the said Rules shall be classified under the heading appropriate to the goods to which they are most akin. The impugned order, in this case, has accepted the fact that the cameras in question are Digital Cameras. But due to short in recording capacity and low resolution in capturing the images, it has changed the classification and also denied the benefit contained in notification dated 30-6-2017. On close scrutiny of the product description mentioned in Heading 8525, we are not inclined to accept classification of subject goods under Tariff Item 8525 80 90, for the reason that the description under such sub-heading as others is of more in general type. On the contrary, by accepting the trade parlance theory, confirmation of the manufacturer, HSN clarificatory notes etc., we find that the proper interpretation of the law and statute demands that the impugned goods are to be more appropriately classifiable under Tariff Item 8525 80 20, as claimed by the appellant. 4.12 Now coming to the issue of exemption claimed by the appellant under Notification No 50/2017-Cus is taken up for consideration. The relevant entry in the notification is reproduced bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow: Exemption to specified goods of Chapters 84 85 (ITA Bound expositions).- In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts following goods of the description specified in column (3) of the Table below and falling within the heading, sub-heading or tariff item of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of the said Table, when imported into India, from the whole of the duty of customs leviable thereon under the said First Schedule, namely:- S.No. Heading, Sub-Heading or Tariff Item Description of Goods (1) (2) (3) 13. 8525 40 00 Digital still image video cameras 6. Thereafter, w.e.f. 01.01.2007, the notification dated 01.03.2005 was aligned with the Harmonised System of Nomenclature 8 amendments and the tariff entry for digital still image video cameras wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid notification dated 01.03.2005 was further amended by notification dated 30.04.2015 and the same is reproduced below: S.No. Chapter or Heading, Sub- Heading or Tariff Item Description of Goods Standard rate Additional duty rate Condition No. (1) (2) (3) (4) (5) (6) 428A. 8525 80 20 Digital Still Image Video Cameras Nil - - 11. It would thus be seen that Explanation was inserted from 17.03.2012 to 30.04.2015 only. Prior to 17.03.2012 and post 30.04.2015, the exemption from BCD was granted to digital still image video cameras without the Explanation. 4.13 In case of Panam Corporation [2020 (374) ELT 743 (T)] for the period prior to insertion of the Explanation in 2012, tribunal refused to restrict the meaning given to the phrase Digital Still Image Video Cameras and allowed the benefit of exemption at Sl No 13 of 2005 notification observing as follows: 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to proper classification of digital still image video camera , we find that on a prayer by M/s. Sony Electronics INC, U.S. Court of International Trade, New York, after detailed discussions and upon analysis of the relevant Tariff description, HSN notes and considering the functional test of the camera, vide judgment dated 23-12-2013, opined that digital still image video camera is that which is capable of recording still, images as well as videos, in digital format; the Court also held that it is irrelevant as to which feature/function is more fundamental or principal and that as long as the camera is capable of recording both photographs and videos, the same qualifies to be a digital still image camera . Since the camera is an electronic device, capable of digitally capturing and recording still and moving images, the U.S. Court has held that such camera should appropriately be classifiable under 8525 80 40 as digital still image video camera. In view of the fact that the Tariff classification of the goods as per HSN is determined according to the standards prescribed by the World Customs Organisation, where India is a member country, we are of the considered opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms, dated 1-3-2005 would be available to digital cameras with still image recording as its principal function. This would also include those digital cameras that have the capability of recording moving images for a limited period of time. 10. In view of the above Circular, exemption will be available to Digital Cameras with still image recording as the principal function. This should also include those digital cameras that have the capability of recording moving images for a limited period of time. We find that the appellants submit that on testing the product, if would be clear that the number of still image photos clicked would be about 200, whereas, at the same time, the video recording/shooting would be not more than 3 to 3.5 minutes. We find that Revenue has not denied the fact and have not recorded any findings contracting the submissions of the appellant. The appellants also submit that the packaging indicated the impugned goods to be digital still image video camera and the functions are explained in the Manuals. We find that as per the HSN Explanatory Notes, the impugned goods are digital cameras. Therefore, the exemption contained in [Circular] No. 32/2007 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or machinery, as the case may be. The Notification was not intended to benefit those who contributed their own material to the articles supplied by the customer and manufactured different goods. We must hasten to add that addition or application of minor items by the job-worker would not detract from the nature and character of his work. For example, a tailor entrusted with a cloth piece and asked to stitch a shirt, a pant or a suit piece may add his own thread, buttons and lining cloth. Similarly, a factory may be supplied the shoe uppers, soles etc. by the customer and the factory applies its own thread or bonding material and manufactures shoes therefrom and supplies them back to the customer, charging only for its work. The nature of its work does not cease to be job-work. Indeed, this aspect has been stressed in all the decisions of High Courts referred to hereinbefore. 18.The interpretation placed by us does not render the Explanation in the Notification redundant in any manner, while at the same time it advances the object of the Notification, viz., helping factories undertaking manufacturing processes in the nature of job-work. The restricted interpretation contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect that the phrases used in the Notification No 50/2017-Cus at Sl No 502 has to be interpreted in light of the Explanation which was there in some other Notification at any point of time we are not concerned with the interpretation of the Notification wherein explanation was given defining the phrase Digital Still Image Video Cameras . The said explanation cannot be used to restrict the phrase used in the notification under consideration. If government intended that the said phrase should have been interpreted according to the explanation contained in the earlier notification then same explanation could have been inserted in the present notification. 4.15 While holding that the benefit of exemption under Notification 50/2017-Cus Sl No 502 will be admissible to the similar goods imported by the appellant, tribunal has held as follows: 9.2 The Central Government vide Notification No. 25/2005- Cus., dated 1-3-2005 has exempted the digital still image video cameras falling under the Tariff Item 8525 80 40 from the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975. After alignment of the said Tariff Item in the HSN, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no effect; to annul; to take the place of; to succeed to the place occupied by. Further, Hon ble Supreme Court in the case of State of Rajasthan v. Mangilal Pindwal, reported in MANU/SC/0549/1996 have delineated the meaning of supersession by holding that the old Rule is made to cease to exist and a new Rule is brought into existence in its place. It has also been held that the substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. The legislative intent behind the superseding notification dated 30-6-2017 (in dispute) is manifest that the embargo created in the earlier notification dated 17-3-2012 should not be looked into, meaning thereby that the Digital Still Image Video Cameras falling under Tariff Item 8525 80 20 should be eligible for the benefit of duty exemption and the criterion of quality and capacity to record images/events provided in the explanation appended to the earlier notification dated 17-3-2012 should not be insisted upon by the Customs authorities. In the present case, it is an undisputed fact that the Learned Commissioner (Appeals) has accepted that the cameras in question imported by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv) The appellant has claimed benefit of Notification no.50/2017-Cus, Sr. No. 502, but it is a fact also that the notification no. 15/2012-cus dated 17.03.2012 was never rescinded. v) The Notification No. 02/2002-Cus was superseded by Notification No. 12/2012-Cus dated 17.03.2012 and now the Notification no. 12/2012-Cus is superseded by Notification no. 50/2017-Cus dated 30.06.2017. Thus it is submitted that for impugned goods there were parallel notifications available from 2005 onwards. vi) The parallel notification was available, because, the notification no. 50/2017-Cus is for general exemption to almost all the items, but the notification no. 25/2005- Cus was issued for specific products of information technology, issued in compliance of WTO requirements. 4.17 We do not find any merits in the said argument of the revenue because it is settled law that if two notifications are available to the importer at the same time in respect of the imported goods, then it is for importer to choose the exemption which is beneficial to him, revenue cannot force him to chose a particular exemption notification. The argument made by the revenue by the revenue that the exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. From the above decisions, it is clear that even if an applicant does not claim benefit under a particular notification at the initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage. 16. In the instant case, the ground which weighed with the Deputy Director General (Medical), DGHS for non-considering the prayer of the appellant was that earlier, exemption was sought under category 2 of exemption notification, not under category 3 of exemption notification and exemption under category 2 was withdrawn. This is hardly a ground sustainable in law. On the contrary, well settled law is that in case the applicant is entitled to benefit under two different Notifications or under two different Heads, he can claim more benefit and it is the duty of the authorities to grant such benefits if the applicant is otherwise entitled to such benefit. Therefore, nonconsideration on the part of the Deputy Director General (Medical), DGHS to the prayer of the appellant in claiming exemption under category 3 of the notification is illegal and improper. The prayer ought to have been considered and decided on merits. Grant of exemption under catego ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal cameras'. However, 'Video Camera Recorders' are separately classifiable under Tariff Item 8525 80 30. 3. Import duty exemption was extended to 'Digital Still Image Video camera' falling under sub-heading 8525.40, vide entry at Serial Number 314 of Notification No.21/2002-Customs dated 1.3.2002. This exemption is presently covered under Serial Number 13 of Notification No. 25/2005-Customs dated 1.3.2005. Since the notification entry at Sl. No. 314 of Notification No. 21/2002-Cus. dated 1.3.2002 used the words 'video' as well as 'still image', there was a doubt in the field formations whether this entry covers such digital cameras which are capable of both still image photography as well as video film shooting. 4. This issue was deliberated at the Conference of Chief Commissioners' on Tariff and Allied Matters in 2006, wherein it was decided that only those digital cameras that record still images on Video format are covered under the description of the exemption entry i.e. 'digital still image video cameras'. However, to ensure uniformity, it was decided that the Board would issue a circular in this regard. The minutes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Authority of Advance Ruling New Delhi in its Ruling No CAAR/Del/Canon/12/2022 dated 19.07.2022 stating as follows while extending the benefit of exemption under Notification 50/2017-Cus. 11.2 As regards. applicability of Notification No. 50/2017-Cus. dated 30.06.2017 [Sl. No. 502). I notice that exemption from BCD is admissible to Digital Still Image Video Camera other than Camera or Camera module of cellular mobile phone. It is also observed that the said CBIC Circular has clarified that exemption to Digital Still Image Video Camera' would be available to digital camera with still image recording as its principal function and this would include those digital cameras that have the capability of recording moving images for a limited period of time. 11.3 I notice that comments of the concerned Principal Commissioner of Customs. ACC Import. New Delhi on applicability of Sl. No. 502 of Notification No. 50-2017-Cus. dated 30.06.2017 primarily based on the reason that the term 'digital still image video camera' covers only digital cameras that have the capability of taking still images; this would also include digital cameras that take moving images for limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the same are imported together lens and battery charger and compulsorily supplied along with the said digital camera. However, in case of optional lens. not to be compulsorily supplied with the Canon Camera Model No. DS126864 would merit classification in the tariff heading appropriate to it. Hence we are not in arguments advanced by the revenue relying on this circular of the Board. In our opinion there are two notifications one of which impose a restriction in terms of capacity and time limitation of the recording, whereas the other do not impose and such restriction, once we find that the imported action camera qualifies as Digital Still Image Video Camera , benefit of exemption under the notification no 50/2017-Cus cannot be denied. 4.20 Now we take up for consideration the individual order in appeal: 5.1 O-I-A No. MUM-CUSTM-AMP-APP-687 to 705/2019- 20 dated 22.11.2019 Sr No. Bill of Entry Nos. date Appeal No Model No. 1. 2858076 dt. 16.04.2019 C/85273/2020 GOPRO HERO 7 2. 2952357 dt. 23.04.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so explained during the course of earlier personal hearing, the cameras imported by the appellant are action cameras which can be mounted on any moving object to record high resolution videos. I find that the cameras imported by the appellant are capable of recording of video having resolution 1080 and up to 4K, at the speed of more than 30 frames per second. Thus, these two conditions are not satisfied by the respondents and thus the cameras imported by them are not eligible for benefit under s.no. 502 of notification no. 50/2017-cus dated 30.06.2017. Apart from the fact that the specific description and its further explanation as regards to the goods which will be covered under the nomenclature of Digital Still Image Video Camera as provided vide Customs Notification No. 15/2012, I find that CTH 85258020 covers Digital Cameras and 85258030 covers Video Camera Recorders (Camcorder) but the impugned goods have functionality of both Digital Still Camera as well as Video Camera. To qualify as Digital Still Image Video Camera, the scope of and parameters are very much clear and the impugned goods do not pass the test as provided under Customs Notification No. 15/2012. At the same time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows: 8. I find that the technical details as reflected in the technical literature of various models and also explained during the course of earlier personal hearing, the cameras imported by the appellant are action cameras which can be mounted on any moving object to record high resolution videos. I find that the cameras imported by the appellant are capable of recording of video having resolution 1080 and up to 4K, at the speed of more than 30 frames per second. Thus, these two conditions are not satisfied by the respondents and thus the cameras imported by them are not eligible for benefit under S.No. 502 of notification no. 50/2017-cus dated 30.06.2017. Apart from the fact that the specific description and its further explanation as regards to the goods which will be covered under the nomenclature of Digital Still Image Video Camera as provided vide Customs Notification No. 15/2012, I find that CTH 85258020 covers Digital Cameras and 85258030 covers Video Camera Recorders (Camcorder) but the impugned goods have functionality of both Digital Still Camera as well as Video Camera. To qualify as Digital Still Image Video Camera, the scope of and parameters are very much cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. 6411448 dt.09.01.2020 C/853999/2020 GOPRO HERO 8 10. 6694645 dt.30.01.2020 C/853998/2020 GOPRO HERO 7 11. 6518546 dt.17.01.2020 C/86000/2020 GOPRO HERO 8 Impugned order while considering the appeals filed against the re assessment made on the Bill of entries without any speaking order records the findings as follows: 8. I find that the technical details as reflected in the technical literature of various models and also explained during the course of earlier personal hearing, the cameras imported by the appellant are action cameras which can be mounted on any moving object to record high resolution videos. I find that the cameras imported by the appellant are capable of recording of video having resolution 1080 and up to 4K, at the speed of more than 30 frames per second. Thus, these two conditions are not satisfied by the respondents and thus the cameras imported by them are not eligible for benefit under S.No. 502 of notification no. 50/2017-cus dated 30.06.2017. Apa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 for digital still image video camera should be available to the appellant. I find the inference of Hon'ble CESTAT is stretched without reasonable basis here so much so that in this situation suppose if any importer imports mobile phone which is capable of capturing digital still photos as well as recording videos, then going by the above logic can the importer declare the same as 'digital still video cameras?' The point which want to observe here is that importer's claim for classifying the imported goods as digital still image videos camera cannot be taken as a gospel truth if it has both capabilities until and unless it is tested on the touch stone provided by the Revenue vide its Notfn No. 50/2017-Cus dtd. 30.6.2017 and it clears the bar. Based on the above discussions, I am not convinced with the ratio provided by the learned CESTAT and hence, am of the consistent view, which I have taken in the case of the impugned goods in my earlier Appellate Order and I stand by them. Interestingly the impugned order has been passed relying on the order in appeal which has been set aside by the tribunal. Commissioner (Appeal) find the view taken by him in earlier or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no remedy to have the matter rectified is also incorrect. Section 35E confers adequate powers on the department in this regard. Under sub-section (1), where the Central Board of Excise and Customs [Direct Taxes] comes across any order passed by the Collector of Central Excise with the legality or propriety of which it is not satisfied, it can direct the Collector to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. Under sub-section (2) the Collector of Central Excise, when he comes across any order passed by an authority subordinate to him, if not satisfied with its legality or propriety, may direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order and there is a further right of appeal to the department. The position now, therefore, is that, if any order passed by an Assistant Collector or Collector is adverse to the interests of the Revenue, the immediately higher administrative authority has the power to have the matter satisfactorily r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal hearing. We find merits in the ground stated and allow the miscellaneous application filed for early hearing of these appeals. Having allowed the early hearing these appeals were heard with the consent of both the parties. Since no speaking order has been made either by the assessing officer Commissioner (Appeal) and matter remanded to the assessing officer to pass an speaking order we do not find any infirmity in the order of the Commissioner (Appeals). However while dismissing the appeals filed by the appellant against this order, we direct the assessing officer to finalize the assessment orders as per our observations made in paras above. 6.1 All the appeals are allowed in the cases where the bill of entries pertain to importation of the Digital Cameras by the appellant, holding that the benefit of exemption under Notification No 50/2017-Cus as claimed by them will be admissible to the appellant. Thus appeal C/85269, 85272 to 85276, 85291 to 85303, 85380 to 85387, 85997 to 86007 86013 to 86018/2020 are allowed setting aside the impugned orders. Matter is referred back to the original assessing officer to assess the Bill of Entries as per directions contained in th ..... 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