TMI Blog2015 (4) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clear that the assessee was all along pursuing the matter diligently under the bona fide belief that the classification as made by it is correct. However, this aspect has been lost sight of by the Tribunal, while upholding the order of the original authority, whereby the penalty imposed on the assessee has also been confirmed. It is clear from the records that the assessee was pursuing the matter under the bona fide belief that the classification offered by it is correct. In such circumstances, it cannot be said that the act of the assessee was wilful, deliberate and dishonest, in that he wanted to avoid payment of duty, thereby evading tax liability. The present case falls squarely within the parameters as propounded by the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating authority was of the view that the goods imported are restricted items and consumer goods and not permitted to be imported without special import licence in accordance with the Public Notice issued. Since the importer did not produce a valid licence, it was held that the goods are liable for confiscation under Section 111 (d) of the Customs Act. Accordingly, the goods, valued at ₹ 3,42,882/- were confiscated invoking Section 111 (d) of the Customs Act read with Section 3 (3) of the Foreign Trade (Development Regulation) Act, 1992 with liberty to the assessee/appellant to redeem the same on payment of fine of ₹ 6,80,000/- under Section 125 of the Customs Act and also imposed a penalty of ₹ 68,000/- under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of other toys and models, incorporating a motor (950380.01) was made free. It appears that earlier such imports were allowed under SIL. 10. In the present case, the motorized 'talking parrot'toy was made of plastic which was covered by fabric. Therefore, it was a toy covered by plastic and fabric. That would bring the said toy in the category others under the sub-heading 950349.09. In our opinion, therefore, talking parrots imported by the present respondent under the Bill of Entry No.28747 dated 3.6.97 would be classifiable under sub-heading 950349.09 and not under sub-heading 950380.01. Therefore, the ratio of the earlier decision of the Tribunal in CC Vs India Book House Ltd., decided on 11.12.2001 is, with respect, not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chose to classify the goods under ITC (HS) Heading 9503 80.01, for which no import licence was required. Now that the decision of the original authority stands upheld, we set aside the appellate Commissioner's order and allow this appeal of the Department. Aggrieved against the said decision of the Tribunal, the assessee/appellant is before this Court by filing the present appeal. 7. Heard Mr.Krishna Anand, learned counsel appearing for the appellant/assessee and Mr.Mohanamurali, learned standing counsel appearing for the respondent/Department and perused the materials available on record. 8. When the matter was taken up for hearing, learned counsel appearing for the appellant/assessee fairly conceded that he is not canvassing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... falling within Entry 62 of Appendix 2, the burden lies on the customs department to show that the appellant has acted dishonestly or contumaciously or with the deliberate or distinct object of breaching the law. 60. In the present case, the Tribunal has itself specifically stated that the appellant has acted on the basis of bona fide belief that the goods were importable under OGL and that, therefore, the appellant deserves lenient treatment. It is, therefore, to be considered whether in the light of this specific finding of the Customs, Excise Gold (Control) Appellate Tribunal, the penalty and fine in lieu of confiscation require to be set aside and quashed. Moreover, the quantum of penalty and fine in lieu of confiscation are extrem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assification of goods imported in its favour. While the Commissioner (Appeals) differed with the finding of the adjudicating authority, the Tribunal also, initially, on its part, was not clear, as there were two different views and, therefore, the matter was referred to a Larger Bench, which came to decide the issue once and for all. Thereafter, the present order came to be passed. 13. Therefore, it is clear that the assessee was all along pursuing the matter diligently under the bona fide belief that the classification as made by it is correct. However, this aspect has been lost sight of by the Tribunal, while upholding the order of the original authority, whereby the penalty imposed on the assessee has also been confirmed. 14. As ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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