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TMI Blog2023 (3) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, Customs Appeal No. 86016 of 2020,Customs Appeal No. 86014 of 2020, Customs Appeal No. 86017 of 2020, Customs Appeal No. 86018 of 2020 HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) HON'BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) For the Appellant : Shri N.D. George, Advocate, For the Respondent : Shri D.S. Maan, Deputy Commissioner, Authorised Representative ORDER PER: SANJIV SRIVASTAVA These appeals are directed against order in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 We have heard Shri N D George, Advocate for the appellant and Shri D S Maan, Deputy Commissioner, Authorized Representative for the revenue. 3.2 Arguing for the appellant learned counsel submits * The 'GoPro Cameras' imported were classified by the Appellants under Tariff Item 8525 80 20. The Appellants have been claiming exemption, from payment of basic customs duty, in terms of Notification No. 12/2012-Cus (Sl. No. 428A) (until 30.6.2017) and Notification No. 50/2017-Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ani 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 Delhi reported in 2022 (3) TMI 419,where reference is made to the Hon'ble President of CESTAT to constitute a Larger Bench, is not proper as the issue referred for resolution in Nikon matter is different and distinct from the issue involved in the present case of the Appellants. * The issue at hand namely classification of the imported "Digital Still Image Video camera" is already decided in favour of the Appellant by a decision in their own case by this Hon'ble Tribunal vide Final Orders No. A/85606- 85642/2020 dated 17.7.2020. It has been held that the classification of the imported camera is correctly classifiable under Tariff Item 85258020, which decision has been accepted by the Customs Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 is also a fact it was issued in reference to the then General Exemption Notification no. 02/2002-Cus as at that time similar definition was available against the impugned goods in that notification also. However, it is true at present similar definition is not available in notification no. 50/2017-Cus. But, it cannot be concluded otherwise as now definition of the impugned goods are available in statutes. Since, the definition of impugned goods is available in the notification no. 25/2005-Cus and said notification is still valid. And that too is not a conditions in the said Notification . Rather, it part of description, thus for any dispute, it is prayed, it should be refereed. * t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 simply touching the display. * can shoot 4K video up to 60fps; slow motion video at up to 240fps at 1080p; live streaming; voice control and can recognise voice commands. * The 8th generation is the first to be completely waterproof without the need for a housing or cage. More features have been added with the new Mod system toping these releases new features list, enabling the user to adapt the camera for vlogging with optional Media, Light and display Modes. * with all the above mentioned features the impugned products has all features of a complete Video Camera which has the capability to record still images. With this cross over, * the impugned product has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 85258090 as the said product is an Action camera which is a special purpose camera and not ejesdem generis to the products classifiable under CTH 85258020 or CTH 85258030. * contention of the Department is supported by an answer given by Mr. Moscovici on behalf of Commission in European Parliament on 15.04.2016, wherein the European Commission has clarified that the devices with recording capacity of 30 minutes or more are classified as video cameras. By the reply given in EU Parliament the digital camera having capability to record video for more than 30 minutes is not "Digital Still Image Video Camera" and hence cannot be clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 Hero8 Black, in both 4K and 2.7K is 100 Mbps. The Action cameras have much high Bit rate than the common Digital cameras and the video cameras which is in the region of 12 to 24 Mbps. * Sensor Size - he Action cameras generally use small size sensors. While the standard DSLR Cameras have bigger sensors, usually the Action cameras have 1/2.3″ sensors. Admittedly, some advanced action cameras have larger one-inch sensors, which means better low light performance, and the ability to capture amazing photos and videos even at higher shutter speeds. * In-camera Image Stabilisation - Action cameras incorporate Electronic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 of rule of Harmonious Construction: * The courts should avoid such provisions which are contradicting in nature and which brings the head-on clash between each other. * The courts should interpret in such a way that brings harmony to the contradicting provisions. * The provision of one section cannot defeat the other provision. * When the court fails to bring harmony to both parties, it should at least interpret in such a manner where both the provisions are given effect as much as possible. * Courts should keep in mind that the interpretation which reduces one provision to the dead is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Supreme Court in Tata Teleservices - 2006(194)ELT 11 has held that circular cannot impose a restriction or limitation which is not there in the notification and in Inter Continent (India) Vs UOI-2003ELT (154) 37(Guj.) also laid down same principal. Thus the appellant's argument appears to be not proper. * Sony India [2018(362) ELT 637(Tri)] * The reliance placed by the appellants on various decisions is not proper and the same are distinguishable as stated earlier in the submissions made. * Sony Electronic decision of US Customs Tribunal called International Trade Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anded) 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 known as camcorder. The other difference is of low resolution and less frames captured per second. Conversely video camera should have capacity of recording pictures with high resolution with high speed of frame capturing ability. The storage capacity of digital still image video camera should also be on lower side in comparison to video camera which makes the latter better adapted for long duration recording. The first category i.e. digital still image video camera also includes 'digital camera' that apart from taking still images can take moving images for limited period of time but due to low ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 --- Television cameras 85258020 --- Digital cameras 85258030 --- Video camera recorders 85258090 - Other From the perusal of the above entries it is quite evident that headings 85258010, 85258020 and 85258030 are the three dash (---) headings while the heading 852580 and 85258090 are single dash (-) heading. Their seem to be some error in the structuring of the tariff headings for the reason that if the heading 85258090 is single dash heading then it cannot be the part of other single dash heading 852580 as the headings at the same level are comparable. Hence heading 85258090 will have to be read independent of the group covered by the heading 852580 that is "Television cameras, digital cameras and video camera recorders". Further fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... media of Heading 85.23). They may include an analogue/digital convertor (ADC) and an output terminal which provides the means to send images to units of automatic data processing machines, printers, televisions or other viewing machines. Some digital cameras and video camera recorders include input terminals so that they can internally record analogue or digital image files from such external machines. Generally, the cameras of this group are equipped with an optical viewfinder or a Liquid Crystal Display (LCD), or both. Many cameras equipped with an LCD can employ the display both as a viewfinder when capturing images and as a screen for displaying images received from other sources or for reproducing images already recorded. 4.9 The Explanatory notes to the Combined Nomenclature of the European Union for the heading 8525 80 reads as follows: 8525 80 11 to 8525 80 99 Television cameras, digital cameras and video camera recorders See the HS Explanatory Note to heading 8525, (B). These subheadings do not cover electronic reading devices for the visually handicapped (see the explanatory note to subheading 8543 70 90). 8525 80 30 Digital cameras Digital cam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequently activated as video input by means of software. The apparatus is nevertheless designed to record television programmes or other externally incoming signals. However, 'camcorders' with which only the images taken by the camera can be recorded and reproduced by means of an external television receiver or monitor fall in subheading 8525 80 91. Further USITC has following entries: 852580 Television cameras, digital cameras and video camera recorders: 85258010 Television cameras: gyrostabilized television cameras 85258020 Studio television cameras excluding shoulder-carried and other portable cameras 85258030 Television cameras, nesoi 85258040 Digital still image video cameras 85258050 Television cameras, digital cameras and video camera recorders 8525805010 Camcorders: 8 mm 8525805020 Other 8525805050 Other From the above it is quite evident that the tariff entries in respect of US Tariff, and Combined Nomenclature for EU, are though identical at the six digit level (HS is six digit level) are not identical at the eight digit level. While the US Tariff, against heading 85258040 classifies "Digital still image video cameras" and classifies the digi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chest, or on the handlebars of a bike or similar vehicle. They may also be mounted on a tripod or on a monopod for handheld use. An action camera is usually designed to require minimal interaction once recording has begun, as this allows continuous capture of the action without having to interact with the camera. A typical action camera records onto a micro SD card, and has either a Micro-USB or a USB-C connector. Action cameras are associated with outdoor sports, and, often attached to helmets, surfboards or handlebars, are an integral part of many extreme sports such as base jumping and wingsuit flying. Sometimes several cameras are used to capture specific perspectives, such as a helmet camera that sees the perspective of the actor in combination with a second camera attached to the environment of the rider, such as a board, wing, handlebar or wrist, that looks back onto the rider and records their reactions. The category commonly is associated with the GoPro range of cameras, and many action cameras come with a GoPro mount adapter to take advantage of the accessories available for these cameras. However, there are many GoPro alternatives which are entering the market of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 opinion that the declaration made by the U.S. Court; in respect of classification of the subject goods should have persuasive value in consideration of the classification of the disputed goods under CTH 8525 80 20 in the present case. 8.4 The alternate submissions made by the Learned AR for Revenue that the disputed goods might be classifiable under Tariff Item 8525 80 30 is not acceptable by the Bench at this juncture. Such issue was neither the subject matter of dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification 15/2012-Cus, Delhi Bench has in its interim order referred earlier recorded as follows: "3. The issue involved in this appeal is whether these cameras imported by the appellant are eligible for exemption from BCD under serial no. 13 of the notification dated 01.03.2005, as amended by notification dated 17.03.2012. 4. It would be necessary for appreciating the issue, to first understand what factors led to the issuance of these two notifications. Information Technology Agreement 6 is an agreement that was enforced by the World Trade Organization and concluded in the Ministerial Declaration on Trade in Information Technology Products in 1996. The aim of the said treaty was to lower all taxes and tariffs on information technology products by the signatories to zero. The 'digital still image video cameras' are also mentioned in the list of products covered under the ITA. Various countries that are signatories to the ITA, therefore, undertook to reduce import tariff rates for the digital still image video cameras to NIL. Being a signatory to the said agreement, India also undertook to allow the imports of various electronic goods, including 'digital still image video c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heading,Sub- Heading or Tariff Item Description of Goods (1) (2) (3) 13. 8525 80 20 Digital still image video cameras. 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. 9. With effect from 01.03.2015, the notification dated 01.03.2015 was further amended to read as follows: 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 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 Nil - - 10. The aforesaid 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 Descrip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification does not define the cameras but says that the exemption is applicable to 'Digital Still Image Video Cameras'. Hon'ble Apex Court in the case of Associated Cement Co. Ltd. v. State of M.P. [2004 (168) E.L.T. 151 (S.C.)], held that when the words in the notification have not been specifically defined, then their popular or commercial meaning given by those dealing with them has to be resorted to. 8. We find that after alignment of the impugned Tariff Item was aligned with the Harmonised System of Nomenclature (HSN). As a result of the alignment, digital 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 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t take moving images for limited period of time although they are primarily still image cameras. Such cameras fall under tariff item 8525 80 20. However, digital cameras that can take both still images and moving images like Camcorder or video recorder falling under Tariff item 8525 80 30 shall not be covered under the said entry. Digital still image video cameras can also be differentiated from the still cameras of heading 9006 i.e. photographic film cameras. Cameras of this type are also not eligible for the benefit of these notifications. 7. It is accordingly clarified that the benefit of entry at Sl. No. 314 of notification No. 21/2002-Cus. as well as Sl. No. 13 of Notification 25/2005-Customs, 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 limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word "job work". Now, what does the expression `job work' mean? On this question, the Explanation is not of much assistance. The Concise Oxford Dictionary assigns several meanings to the expression `job' but the relevant meaning having regard to the present context is "a piece of work especially one done for hire or profit". The expression `job work' is assigned the following meaning : "work done and paid for the job". The Notification, it is evident, was conceived in the interest of small manufacturers undertaking job-works. The idea behind the Notification was to help the jobworkers - persons who contributed mainly their labour and skill, though done with the help of tools, gadgets 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the work done by them. In their hands, the value of the article would be the value of the job-work done by them - and not the total value of the article which would have been the case but for the Notification. According to the restricted view contended for by the Revenue, a tailoring factory stitching clothes out of the cloth supplied or a factory preparing shoes out of material supplied by the customer, in the illustrations given hereinabove, would not qualify for the benefit of the Notification. (We are not concerned herein how such articles would be valued in the hands of the supplier.)" 4.14 Thus we are not in agreement with the findings recorded in the impugned order, 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 17-3-2012 and 30-6-2017, it clearly reveals that the later notification was issued by superseding the former notification, wherein the character and features of the digital cameras of Tariff Item 8525 80 20 were defined by way of inserting an explanation. For ascertaining the true scope and ambit of the phrase 'supersession', we may refer to the meaning assigned to it in the dictionary. The Shorter Oxford English Dictionary - Third edition, defines the said term to mean an action of superseding or condition of being superseded. The said dictionary also assigns the meaning of 'supersede' to indicate that to put a stop to; to render superfluous or unnecessary; to make of 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 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Notification no. 15/2012-cus, vide which the parallel notification no. 25/2005-Cus dated 01.03.2005 was amended is still valid and it is still existing. iii) Consequence to WTO agreement the First Schedule to The Customs Tariff Act, 1975 was amended and the erstwhile CTI 85258020 was replaced with New CTI 85258900 for all types of Digital Camera. In new scheme of classification for Digital Cameras, all distinctions are replaced and only one CTI 85258900 is available. i.e now there is no separate entry existing for Television Camera, Digital Camera, Camcorder Camera, Video Camera etc. Only a few new entries are introduced for very specialized Cameras. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the several heads of exemption. If it fell within any one head of exemption, it would be free from tax notwithstanding that the conditions of another head of exemption are not satisfied and such income is not free from tax under that head of exemption. The expression "marketing" is an expression of wide import. It involves exchange functions such as buying and selling, physical functions such as storage, transportation, processing and other commercial activities such as standardisation, financing, marketing intelligence etc. Such activities can be carried on by an Apex Society rather than a primary society". (emphasis supplied) 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 withdraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deo camera recorders; digital cameras". According to Harmonized System (HS) Explanatory Notes (Third edition,2002), the apparatus of sub-heading 8525.40 consisted of a combination of video camera and a video recording or reproducing apparatus; these apparatus record the images taken by the camera. All types of digital cameras perform these functions. With effect from 1.1.2007, based on HS 2007 changes, all digital cameras have been grouped under tariff item 8525 80 20 of the Customs Tariff Act, 1975 as 'digital 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are also not eligible for the benefit of these notifications. 7. It is accordingly clarified that the benefit of entry at Sl. No. 314 of notification No.21/2002-Cus. as well as Sl.No.13 of Notification 25/2005-Customs 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." This circular was considered by 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition) Rules, 1963. accessories for any article when imported along with that article shall be chargeable at the same rate of duty as that article in case such accessories are compulsorily supplied along with that article and no separate charge is made for such supply. Therefore, the classification and eligibility for benefit of the exemption notification of standard accessories. viz. lens and battery charger shall be limited to consignments of Canon Camera Model No. DS126864. wherein 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58020 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, since, the imported cameras are having functionality of digital still camera as well as video camera, the classification adopted by the department under Heading 85258090 as 'Other goods' appears logical and correct. As regards to the two bills of entries 9791027 dated 25.02.2019 and 9364760 dated 22.10.2018 these covers import of accessories of Digital Camera and as such there is no dispute regarding applicability of Notification no. 50/2017-cus dated 30.06.2017 and the goods have rightly been classified under CTH 85299090 attracting merit rate of duty. We do not find any merits in the impugned order for which these appeals are filed and set aside the same, in view of the findings recorded above. We also note from impugned order in para 7, that it decides the issue in respect of two bill o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eo camera, the classification adopted by the department under Heading 85258090 as Other goods' appears logical and correct. As regards to the two bills of entries 9791027 dated 25.02.2019 and 9364760 dated 22.10.2018 these covers import of accessories of Digital Camera and as such there is no dispute regarding applicability of Notification no. 50/2017-cus dated 30.06.2017 and the goods have rightly been classified under CTH 85299090 attracting merit rate of duty." This order records the findings which are identical word by word to the earlier order referred in para 5.1 above. Even the two bill of entries dated 25.02.2019 and 22.10.2018 which were neither part of the bill of entries referred for decision in order at para 5.1 are again part of this order. Might be Commissioner (Appeal) was so obsessed with these two bill of entries that these are part of third order in appeal passed by him without any reference to any appeal against these bill of entries. We do not find any merits in the impugned order and set it aside. 5.3 O-I-A NO. MUM-CUSTM-AMP-APP-1380 to 1390/2019-20 dt. 13.07.2020 Sr No. Bill of Entry Nos.& date Appeal No. Model No. 1. 6260442 dt.27.12.20219 C/853 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded above. 5.4 O-I-A No. MUM-CUSTM-AMP-APP-410 to 415/2020- 21 dt. 09.10.2020 Sr No. Bill of Entry Nos.& date Appeal No. Model No. 1. 7123371 dt.05.03.2020 C/86013/2020 GOPRO HERO 8 2. 8006725 dt.26.06.2020 C/86014/2020 GOPRO MAX 3. 7081863 dt.02.03.2020 C/86015/2020 GOPRO HERO 8 4. 8164595 dt.14.07.2020 C/86016/2020 GOPRO HERO 8 5. 7079044 dt.02.03.2020 C/86017/2020 GOPRO MAX 6. 7079046 dt.02.03.2020 C/86018/2020 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: "9. Further, in para 9.3 of the impugned order of Hon'ble CESTAT, the Tribunal has inferred that since Commissioner (Appeals) has accepted that the cameras in question have functionality of both, digital still camera as well as capable of capturing videos. exemption provided under Notfn dtd. 30.6.2017 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 capabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not "acceptable" to the department - in itself an objectionable phrase - and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. 7. The impression or anxiety of the Assistant Collector that, if he accepted the assessee's contention, the department would lose revenue and would also have 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 Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een passed by the respondent department in the instant case, thus without going into the merits of the case, I remand the matter back to the adjudicating authority to re-examine the case afresh after taking into consideration of the above facts and discussion and pass appropriate 'speaking order' with reasons in consistence with law, rules/regulations and instructions on the subject. While doing so the adjudicating authority shall provide due opportunity to the Appellant to justify and explain its stand with documentary evidences." In these three appeals appellant have filed application for early hearing stating that appeals on same issue are being taken up for final 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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