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TMI Blog2024 (6) TMI 1422X X X X Extracts X X X X X X X X Extracts X X X X ..... classification of the said goods in the International arena may not be out of context. The alignment of the classification of digital cameras and video camera recorders in the year 2007 was more or less in line with Harmonised System of Nomenclature (HSN), lends support to the aforesaid understanding of the subject. Initially, the Digital Still Image Cameras and Video Cameras were classified under a common Chapter Subheading 8525 40 00 and accordingly, the exemption N/N. 25/2005-Cus. dated 01.03.2005 also made applicable to the said Tariff Entry to all Digital Still Image Video Cameras . In the present case, the imported digital cameras are capable of functioning both as still image cameras and to a limited extent as video cameras. It is capable of recording videos for a limited time restricted by the firmware installed by the manufacturer in the camera. It cannot be denied, also nowhere disputed by the Revenue, that the primary function of the imported digital cameras is for recording still images and recording videos for a limited time of 29 minutes 59 seconds in a single sequence, is an additional feature. Reading the catalogue enclosed with the paper-book which indicates that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;BLE SHRI P. ANJANI KUMAR, MEMBER (TECHNICAL) For the Appellant : Shri V. Lakshmi Kumaran, Sr. Advocate, Ms. Ashwini Bhatia, Shri Dhruv Matta and Ms. Jyotipal, Advocates For the Respondent : Shri Ajay Jain, Special Counsel ORDER Per : D.M. MISRA While deciding the appeal filed by M/s Nikon India Pvt. Ltd. The Appellant arising out of Order-in-Appeal No. CC(A)/CUS/D-1/IMP/NCH/238/2019-20 dated 06.06.2019 passed by the Commissioner of Customs (Appeals) The Respondent , New Delhi, by Interim Order No. 4/2022 dated 08.03.2022 , recorded its disagreement with the Order of the co- ordinate Bench in the case of M/s. Sony India Pvt. Ltd. vs. Commissioner of Customs, New Delhi 2018 (362) E.L.T. 637 (Tri.-Del.) . The observation of Referral Bench is as below: 64. The view that we have taken, namely, that digital still image video cameras imported by the appellant would be entitled to BCD exemption under the notification dated 01.03.2005, as amended on 17.03.2012, is contrary to the view taken by the Division Bench of the Tribunal on 19.12.2017 in the earlier round of proceedings arising out of the show cause notice dated 09.08.2014. 65. It would, therefore, be appropriate to refer the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that the imported cameras will not be entitled to the benefit of the notification. 22. The imported digital cameras taking into consideration the memory capacity at the time of import, were found to have the capability of recording video in a single sequence of more than 30 minutes. However, during investigation, it was found that such capabilities have been restricted through firmware to a single sequence of less than 30 minutes. Hence, the fact of matter is that the imported digital cameras, can run a single sequence of only less than 30 minutes whereas the cameras have the capability to have a single sequence of much more than 30 minutes. If the arguments of the appellant are to be accepted, then the notification benefit is to be extended to all those digital still image video cameras, in which a single sequence recording is of less than 30 minutes. Such an interpretation will make the stipulation in the explanation to the Notification about the maximum storage (including expanded) capacity as redundant. It is obligatory to read and satisfy all the conditions of the notification without rendering any part therein as redundant. Since in the present case, the imported dig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... images like Camcorder or video recorder falling under Tariff item 8525 80 30 shall not be covered under the said Entry. On 17.03.2012, the Notification No. 25/2005-Cus. dated 01.03.2005 was amended by Notification No. 15/2012-Cus. by inserting an Explanation prescribing certain parameters for digital still images video cameras to enjoy the benefit of the said exemption Notification. Further, Sl. No. 428A was introduced in the Notification No. 12/2012-Cus. dated 17.03.2012 by which Exemption was extended to all digital still image video cameras which were not covered under Notification No. 25/2005-Cus. (Sl. No. 13) dated 01.03.2005. From 30.04.2015, Sl. No. 428A was amended whereby the Explanation was removed extending exemption to all digital still image video cameras. It is his contention that the benefit has been extended for the period prior to 17.03.2012 under Notification No. 25/2005-Cus. dated 01.03.2005 and after 30.04.2015 under amended Notification No. 12/2012-Cus. 5.2 Advancing on the interpretation of the Notification, learned advocate has submitted that the Explanation to Sl. No. 13 of the said Notification consists of mainly three conditions, (i) be capable of recordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the orders held that if any of the three condition is fulfilled, then the benefit of the Notification No. 25/2005-Cus. 01.03.2005 is not available. 5.4 Further, he has submitted that in the impugned Order-in-Original, it is wrongly held that in view of Condition No. 1 and 2 not being fulfilled, the issues relating to firmware are not required to be discussed at length as the same would not alter the situation and imports in this case. Thus, it is incorrect understanding on the part of the adjudicating authority that all the three conditions are to be seen. On the other hand, the learned Commissioner (Appeals) has recorded a finding on the 3rd Condition by relevant without prejudice to the correctness or otherwise of the said finding. Thus, the impugned order is beyond the finding in the Order-in-Original to this extent. 5.5 It is submitted that the DSCs imported by the appellant do not fulfil all the three conditions and thus, are eligible for the BCD exemption. It has a feature to click still images and record video of resolution higher than 800 x 600 pixels with 23 or more frames per second, but can record only for a maximum period of 29 minutes and 59 seconds in a single s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by way of firmware. 5.7 Learned advocate explaining the scope of firmware submitted that it is the proprietary software which works as an operating system-cum-software for the camera and its functions are literally (i) color correction; (ii) over/under exposure; (iii) blurring; (iv) red eye reduction; and (v) limited the video recording length to a maximum of 29 minutes and 59 seconds in a single sequence. Firmware is stored in non-volatile memory of the camera and cannot be modified by the user. It is submitted that firmware is intrinsic to the functioning of the digital device and contains basic set of programming code which enables a user to interact with the hardware of the device. Firmware is different from software application which can be loaded to an electronic device for enhancement of its function. Firmware is a basic set of programming code without which the interface between the user and the device would not be possible. For explanation of the work firmware , they referred to the judgment of the Hon ble Supreme Court in the case of Commissioner of Central Excise, Pondicherry vs. Acer India Ltd. 2004 (172) ELT 289 (SC) Further, they have submitted that there is no proh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made responsible for such illegal activity. In support, they have referred to the warranty clauses of the impugned goods. Further, they have submitted that the goods as imported be assessed in the form and condition in which they are imported. In support, they have referred to the judgments in the case of Vareil Weaves Pvt. Ltd. vs. Union of India 1996 (83) ELT 255 and Dunlop India Ltd. vs. Union of India. 1983 (13) ELT 1566 (SC) Further they have submitted that the grounds relating to hacking and the technical report of James Kurian in the previous proceedings were held by the Commissioner in favour of the appellant. Further, they have submitted that the European Union Explanatory notes is also a guiding factor interpreting the explanation of the said Notification. As India is a signatory to ITA; therefore, the Government is obliged to extend the benefits to ITA bound goods. In support, they have referred to the judgment of the Hon ble Supreme Court in the case of Commissioner of Customs, Bangalore vs. G. M. Exports and Others. (2016) 1 SCC 91 Further, they have submitted that the judgment of the Hon ble Supreme Court in Commissioner of Cus. (Import), Mumbai vs. Dilip Kumar Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as the Department was always of the view that DSCs are not meant for recording videos as principal function. The dispute always on the eligibility of Notification No. 25/2005-Cus. dated 01.03.2005. They have argued that all these parameters have been taken by the Referral Bench in its order dated 08.03.2022. 6. Per contra, the learned Special Counsel for the Revenue has submitted that a show-cause notice dated 09.08.2014 was issued earlier by DRI proposing to deny the benefit of the Notification No. 25/2005-Cus. dated 17.3.2012 pertaining to the period 2012-2015. The said demand notice was confirmed and an appeal was filed before this CESTAT, which was rejected. Consequently, the appellant approached the Hon ble Supreme Court. Out of five appeals, the Hon ble Supreme Court decided four appeals in favour of the respective appellants observing that Directorate of Revenue Intelligence DRI has no jurisdiction to issue show-cause notice. The present appeal pertains to the period February 2014 to March 2015 and the show-cause notice was not issued by DRI. It involves 629 Bills of Entry filed during the said period and it was assessed by the adjudicating authority denying benefit of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes in a single sequence using maximum storage capacity also not fulfilled by the imported cameras. Even if recording multiple sequences of 29 minutes 59 seconds, the memory (including expanded memory) of the camera is not exhausted. 6.3 He has further submitted that the approach adopted by the appellants in understanding the scope of Explanation is erroneous as the Explanation can be understood in terms of what cameras are covered by the exemption, there is no need to find out what cameras are not covered by the exemption and then to argue that whatever is not covered by the exclusion, will be covered by the Explanation. He has submitted that as per Explanation, since the crucial word used is not capable of recording certain types of videos, the capability in respect of three parameters should be below the threshold mentioned in the Explanation. In other words, video camera is capable of recording videos of less than 800 x 600 pixels at below 23 frames per second for a period below 30 minute in a single sequence using maximum storage capacity, the same will be eligible for the benefit of exemption. Any other cameras will not be eligible for exemption. 6.4 Further, he has submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of 800 x 600 pixels, at minimum 23 frames per second, for at least 30 minutes in a single sequence using maximum storage capacity are classified under Subheading 8525 80 20. 6.7 Further, it is argued that the classification of digital cameras and video camera recorders under the European Union Tariff is different from the Indian Tariff. He has submitted that under the European Union classification, the dividing line between digital cameras and video cameras falling under Heading 8525 80 30 and 8525 8091 or 8525 80 99 respectively of European Union Tariff is the capacity to use maximum storage capacity of recording in a quality of 800 x 600 pixels (or higher) at a speed of 23 frames per second (or higher) at least 30 minutes in a single sequence of a video. If the quality is such that the three parameters are equal to or above these three values, the classification as a video recording camera are under 8525 80 91 and 8525 80 99. All other cameras are classified as digital camera falling under Heading 8525 80 91. In contrast under the Indian Customs Tariff, the digital still image video cameras remain classified under 85258020 irrespective of the fact that whether maximum stora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch inference can be drawn that if any one of the capability is below the threshold, the benefit of exemption is available. He has submitted the argument of the department now is also essentially the same. If anyone of the threshold is above the parameter, the camera is not eligible for the exemption. He has further submitted that by taking strict interpretation of an exemption notification, the camera to be eligible for an exemption should not be capable of meeting threshold of three parameters(by reading the three conditions together). Adopting strict interpretation of the exemption notification the Department has followed the principle laid down in various judgements namely, Commissioner of Customs, Mumbai vs. Dilip Kumar and Company (supra); Novapan India Ltd. vs. Commissioner of C. Ex Customs 1994 (73) ELT 769 (SC) SRP Enterprises Pvt. Ltd. vs. Commissioner of Customs C. Ex. 2019 (365) ELT 840 (Tri.-Mum.) Thus, if the camera is capable of exceeding any threshold, the condition of not capable of mentioned in the explanation will not be met and the exemption will not be available. He has submitted that the adjudicating authority has rightly observed that as the two specifications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpt to restrict recording of video to less than 30 minutes in a single sequence by way of a firmware cannot mitigate, diminish or soften the meaning of the unambiguous words. Further he has submitted meaning of using is no different from the word utilising/exhausting in the context of language used in the explanation to the notification. When the memory is used for storing any media it is utilised are exhausted to that extent, therefore, the interpretation of the department does not suffer from any infirmity. Further, assailing the argument that if the maximum storage capacity is used for recording video, then the camera would not be able to do its primary function of recording still images is erroneous. It is also submitted that the department had always argued that the primary function is to take still images and the same is not lost even when the video of less than 30 minutes is recorded for utilising full memory. 6.13 On the Plea of the Appellant that Technically and Commercially it would be unviable, if the interpretation of the department is applied to the third condition that on recording in a single sequence of less than 30 minutes, the capacity of the camera ought to be ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssess the goods on the basis of capabilities existing at the time of import the vis- -vis the requirement mentioned in the Explanation to the notification. There is no new facet of dispute which was not earlier raised before the Tribunal and therefore the final order is relied upon by the Department in their favour. Further, it is submitted that the referral Bench order is erroneous in placing reliance on European Union explanatory notes to arrive at a conclusion that the explanation was inserted to exclude video cameras from the scope of DSC and the conclusion is in line with fulfilment of India s obligations under ITA. Secondly, use of firmware to restrict time to less than 30 minutes in a single sequence is fulfilment of third condition. Also, in the order the Tribunal did not discuss the point that if any one or more capabilities of recording video are above the threshold, the benefit will not be available. 7. Heard both sides at length and perused the records. 8. The principal issue for determination is: whether the appellants are entitled to the benefit of exemption from BCD under Notification No. 25/2005-Cus. dated 01.03.2005 as amended by Notification No. 15/2012-Cus. dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding video with a minimum resolution of 800XB600 pixels, (ii) at minimum 23 frames per second, (iii) for at least 30 minutes in a single sequence using the maximum storage (including expanded) capacity. 11. The Revenue interpreting the said Explanation, in the present proceeding has advanced a fresh argument that in the event any one of the three parameters/functions of a digital still video camera mentioned in the Explanation viz., recording video with a minimum resolution of 800 x 600 pixels, at a minimum of 23 frames per second, for at least 30 minutes in a single sequence using the maximum storage (including expanded) capacity is above the threshold limit, then the benefit of Notification would not be admissible. 12. In the previous proceeding, for the period 2012 to 2014 in the show-cause Notice dated 09.8.2014, the digital cameras imported by the appellant were capable of recording video at a resolution of more than 800X600 pixels, more than 23 frames per second, but not capable of recording at least 30 minutes in a single sequence using the maximum storage (including expanded) capacity. Admittedly, in the present case also, the first two parameters/functions of the imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. While implementing the above said notification, a doubt has arisen whether the above said notification is applicable only in those cases where all the above mentioned three conditions i.e. minimum resolution of 800X600 pixels, at minimum 23 frames per second and for at least 30 minutes in a single sequence using the maximum storage (including expanded capacity) are fulfilled cumulatively or even in those cases where any one of the three conditions is met independent of each other. Owing to this some of consignment were held up at Delhi Air Cargo and the importers has paid duty under protest. In this regard it is pertinent to state that as per the verbal communication held with Shri Yogendra Garg, Director TRU this office has taken the view that all the three conditions should be met before imposing 10% basic customs duty. In accordance with the said view this office is clearing the goods at 0% BCD if all the three conditions are not met. (copy of the letter dated 25.04.2012) to Addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the form of three limitations to qualify for exemption granted to Digital Still Image Video Camera falling under Customs tariff item 8525 80 20, which in relation to capability of recording video are:- (i) with minimum resolution of 800 x 600 pixels, (ii) at minimum 23 frames per second, (iii)for at least 30 minutes in a single sequence using the maximum storage (including) expanded capacity. A plain reading of the above explanation indicates that the exemption is not available to cameras which satisfy the aforesaid specified conditions read together i.e. it should not have the capability to record video (i) at a minimum resolution of 800 x 600 pixels, (ii) at minimum 23 frames per second, (iii) for at least 30 minutes in a single sequence using the maximum storage (including) expanded capacity. 7.2 The first two conditions are satisfied by most of the imported cameras, as they are able to function at these specifications i.e. they are able to record video at a resolution higher than 800 x 600 pixels and at more than 23 frames per second. What is relevant for fulfilling this condition is that the digital camera should not be capable of recording video at or above these specifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the facts of the present case that certain types of cameras were exempt on conditions as enumerated in the explanation: As per the explanation given in the said Notification, digital still image video camera means a digital camera not capable of recording video: (i) With resolution of 800x600 pixels or more; (ii) At 23 frames or more per second; and (iii) for at least 30 minutes in a single sequence using the maximum storage (including) expanded capacity. 17.2.9 There is no dispute in respect of conditions one and two above; both these conditions are satisfied by the Cameras imported by the noticees. The point of dispute is regarding the third condition viz. capability to record video for at least 30 minutes in a single sequence using the maximum storage (including expanded) capacity. 41. Reference can also be made to the order 19.12.2017 passed by the Tribunal in the appeal that had been filed to challenge the aforesaid order dated 28.10.2016 and the relevant portion of the order of the Tribunal is contained in paragraph 23, which has been reproduced above. The Tribunal observed that the three conditions are required to be satisfied though it ultimately held that the restrictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l within the meaning of digital still image video camera and qualify for the said exemption. The reasoning is that each of the parameters/functions specified for a digital camera to be a digital still image video camera in a line under the said Explanation is separated by a comma and comma cannot be read as or in the said sentence, as claimed by the Revenue, that is, if any one or more parameter/function found to be above the threshold limit, then the benefit of the Notification is not admissible. On the other hand, all the three parameters/functions of a digital camera simultaneously should be above the threshold of the said parameters, to deny the benefit of the said Notification. In other words, even if one or more parameters are above the prescribed limit, the remaining parameter below the limit, the digital camera would qualify to be called as digital still image video camera as per said Entry, and be eligible to the Exemption under the said Notification. The significance of comma in interpreting the meaning and scope of the term digital still image video camera in the said Explanation cannot be ignored. The significance of punctuation in the interpretation of taxable entry ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith with 90% and ending with Constitution qualifies sub-clause (ii); and, if the conjunction or is to be read as and , meaning thereby that the portion with 90% ... Constitution has to be read as qualifying both sub-clauses (i) and (ii), then the intention of redefining governmental authority would certainly be defeated. As discussed earlier, the purpose for which governmental authority was re-defined must have been to make it workable. We cannot, therefore, resort to a construction that would allow subsistence of the unworkability factor. Assuming what Ms. Bagchi contended is right, it was incumbent for the appellants to bring to our notice, if not by way of pleading, but at least with reference to the relevant statutes, which of the particular authorities/boards/bodies are created by legislation - Central or State - with 90% or more participation by way of equity or control by Government . Each word in the definition clause has to be given some meaning and merely because promoting educational aspects is one of the functions of a municipality in terms of Article 243W of the Constitution read with Schedule XII appended thereto is no valid argument unless equity or control by the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he capability to record in a single sequence much more than 30 minutes. Rejecting the argument of the Appellant, it is observed that if the arguments of the appellant are accepted, then the benefit of the Notification has to be extended to all those digital still video cameras in which a single sequence recording is less than 30 minutes which will make the stipulation in the Explanation about maximum storage (including expanded) capacity as redundant. It is held that all the conditions of the Notifications be read without rendering any part therein as redundant. Consequently, the Bench concluded that the imported digital cameras are capable of recording video with a minimum resolution of 800 x 600 pixels, minimum speed of 23 frames, 30 minutes in a single sequence using maximum storage(including expanded) capacity, hence, not entitled to the benefit of the Notification. In other words, it means that after recording for 30 minutes in a single sequence, there should not be any further storage space left in the camera (including expanded) capacity, for further recording of video or capturing still images. 22. Differing with the said reasoning and conclusion, the Referral Bench analysi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o broaden the scope and coverage of the ITA (it is being referred as ITA-2). These proposals basically relate to increasing the coverage of IT products on which customs duty would be bound at zero; addressing non-tariff measures; and expanding the number of signatory countries to include new signatories such as Argentina, Brazil and South Africa. Proponents of ITA expansion have prepared a consolidated list containing IT products (combining products of Interest of all proponents of ITA 2), on which tariff reductions are being sought has been prepared and circulated amongst WTO members. Same is under active discussions in the WTO these days. India's experience with the ITA has been most discouraging, which almost wiped out the IT Industry from India. The real gainer from that agreement has been China which raised its global market share from 2% to 14% between 2000-2011in light of recent measures taken by the Government to build a sound manufacturing environment in the field of Electronics and Information Technology, this is the time for us to incubate our industry rather than expose it to undue pressures of competition. Accordingly and also keeping in view opinion of domestic IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion where India is a signatory nation to an international treaty, and a statute is made in furtherance of such treaty, a purposive rather than a narrow literal construction of such statute is preferred. The interpretation of such a statute should be construed on broad principles of general acceptance rather than earlier domestic precedents, being intended to carry out treaty obligations, and not to be inconsistent with them. (4) In a situation in which India is a signatory nation to an international treaty, and a statute is made to enforce a treaty obligation, and if there be any difference between the language of such statute and a corresponding provision of the treaty, the statutory language should be construed in the same sense as that of the treaty. This is for the reason that in such cases what is sought to be achieved by the international treaty is a uniform international code of law which is to be applied by the courts of all the signatory nations in a manner that leads to the same result in all the signatory nations. 26. The European Union Explanatory Notes combined nomenclature of the European Communities explained the meaning of digital video cameras and video cameras. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ystem of Nomenclature (HSN), lends support to the aforesaid understanding of the subject. Initially, the Digital Still Image Cameras and Video Cameras were classified under a common Chapter Subheading 8525 40 00 and accordingly, the exemption Notification No. 25/2005-Cus. dated 01.03.2005 also made applicable to the said Tariff Entry to all Digital Still Image Video Cameras . Pursuant to rationalisation of Customs Tariff Act in line with Harmonised System, the said Entry was split into digital camera falling under 8525 80 20 and video camera recorder under 8525 80 30 with effect from 01.01.2007. Pursuant to the said change in the classification, a Circular was issued by Board bearing No. 32/2007-Cus. dated 10.09.2007 clarifying the doubts about the classification of digital camera having dual function of recording video as well as capturing still images in the context of the said Notification. It is clarified as follows: Circular No. 32/2007-Cus. dated 10.9.2007 Camera Digital Still Image Video Camera Exemption Circular No. 32/2007-Cus., dated 10-9-2007 F. No. 528/96/2001-Cus. (TU) Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tlined the features of the Digital Video camera. Such cameras have been described as Digital cameras that capture light images, convert them to digital electronic signals and then record such digital image data on internal or removable media (built-in memory or diskettes). These images can be reproduced by connecting the camera to a video monitor (or TV), an ADP machine, or by inserting the media in the ADP machine. This type of digital cameras can produce both video signals (e.g., NTSC, PAL, SECAM or other similar video format) and computer readable image data like MPEG. 6. The term Video relates to recording, reproducing or broadcasting of visual images. It is a technology of electronically capturing, recording, processing, storing, transmitting, and reconstructing a sequence of still images representing scenes in motion. The term Still image video camera covers the types of camera that take still images and stores them as single frame of video. These single video frames, when reproduced at a specified frame rate achieve an illusion of a moving image. The minimum frame rate is about fifteen frames per second. The term digital still image video camera covers only digital cameras t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes elevated. The actual movie length may vary depending on the movie content, subject movement, or type of memory card. Notes About Camera Temperature The camera may become hot when shooting movies for an extended period of time or when the camera is used in a hot area. If the inside of the camera becomes extremely hot when recording movies, the camera will automatically stop recording. The amount of time remaining until the camera stops recording (10s) is displayed. After the camera stops recording, it turns itself off. Leave the camera off until the inside of the camera has cooled. 30. In this background facts, the Division Bench in Sony India s case interpreting the expression for at least 30 minutes in a single sequence by using maximum storage (including expanded) capacity observed that after recording for at least 30 minutes, in a single sequence the maximum storge capacity should be used i.e. further space should not be available for either recording videos or capturing still images. The Bench has laid much emphasis on the factor of using maximum storage capacity in interpreting the said expression. 31. Such an interpretation has been disagreed by the Referral Bench observi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apacity inbuilt in cameras including expanded) capacity ought to be completely used and no space left for further function, to fall under the scope of the said Explanation, in our view, would only be possible by mis-construing the expression using the maximum storage (including expanded) capacity , and rendering the phrase in a single sequence otiose. Reading the catalogue enclosed with the paper-book which indicates that continuous recording at a specified resolution and frames per second for more than the specified time would heat up the camera or automatically recording would be terminated. Consequently, we agree with the interpretation recorded by the Referral Bench that recording of video for 30 minutes in a single sequence using maximum storage capacity be construed not to exhaust the entire memory or leaving no space for further recording video or still images laying equal emphasis to the phrase in in a single sequence . The aforesaid interpretation is in line with the International practice of understanding of the meaning of Digital still cameras and video cameras as reflected in the European Union Explanatory Notes and also the Circular issued by the Board. 33. Undisputedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given to the assessee and in case of an exemption Notification, the benefit of ambiguity is strictly interpreted in favour of the Revenue. This ratio has been laid down by the Constitutional Bench while overruling the earlier decision in Sun Export Corporation v. Collector 1997 (93) E.L.T 641 (S.C.) case. To apply the said ratio to the facts of a case, presence of ambiguity in the subject for interpretation is a sine qua non. If there is no ambiguity in the interpretation of the exemption Notification, the same should be liberally interpreted adopting the tools of interpretation applicable to a Notification granting exemption from payment of duty. Also, it is essential that the burden lies on the claimant of the Exemption to establish that this case falls within the parameters of the exemption Notification. In the present case, there is no ambiguity in reading the Explanation of the Notification No. 25/2003-Cus. dated 01.03.2005 as amended, in as much as, a literal interpretation of the said Explanation, as discussed above, reveals that all the three parameters/functions of a digital camera should be cumulatively read so as to ascertain whether all the characteristics are above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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