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TMI Blog2002 (9) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... s and not permitted to be imported without a licence. As the importer had not produced any licence, therefore, the goods valued at Rs. 2,27,245/- (CIF) was held to be imported in violation of provisions of Section 3(3) of the Foreign Trade (Development and Regulation) Act, 1992, and held to be liable for confiscation under Section 111(d) of the Customs Act. The same was ordered to be confiscated, however, the Additional Commissioner granted an option to redeem on payment of fine of Rs. 5,38,935/- and also imposed penalty of Rs. 53,893/- under Section 112(a) of the Customs Act. 2. The Commissioner (Appeals) set aside this order on the ground that DGFT by their letter dated 10-10-95 had clarified that the product projection lamps for pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under the main Heading 85.39 covers all bulbs and lamps which are meant for specific use as components/spares in various types of equipments and that they are freely importable. He submitted that the Heading 853921.00 although refers to 'tungsten halogen' and was a restricted item requiring licence, but this heading cannot overrule the main Heading 85.39 which permits import of bulbs and lamps. There is no restriction to any type of bulbs and lamps and hence the impugned order is proper and requires to be upheld by rejecting the appeal of the Revenue. 6. On a careful consideration of the submissions, we notice that description of heading 85.39 and conditions to this heading and the other heading is as follows : 85.39 Electric fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Restricted Consumer goods - Not permitted to be imported except against a licence or in accordance with Public Notice issued in this behalf 7. First and foremost, we have to proceed to classify the item. The electric filament or discharge lamps are excluded from the category of tungsten halogen lamp as it has a separate main Heading under 853910.00. While there is a specific heading for 'tungsten halogen', hence the same cannot be held to be classifiable along with the major heading. The item tungsten halogen clearly is a restricted item requiring licence. The interpretation which makes this Heading 853921.00 with specific mention to tungsten halogen, redundant or otiose is to be avoided by us. The bulbs and lamps which are m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3921.00 and hold that the said item is a restricted item requiring a licence. However, as regards the amount of redemption fine and penalty fixed by the OIO, we are of the considered opinion that the redemption fine is required to be fixed on the basis of margin of profit and it shall not exceed the market price of the goods as laid down under proviso to sub-section (2) of Section 115 read with proviso to Section 125 of the Customs Act. Therefore, the Addl. Commissioner order fixing the RF at Rs. 5,38,935/- against the value of Rs. 2,74,967/- is not in terms of the above mentioned section and hence it cannot be confirmed including the amount of penalty imposed in the matter. Therefore, we remand the case back to the original authority to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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