R SUBRAMANIAM Vs. COLLECTOR OF CUSTOMS AND CENTRAL EXCISE
LAWS(CE)-1986-8-7
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on August 06,1986

Appellant
VERSUS
Respondents

JUDGEMENT

S. Kalyanam, Member (J) - (1.)THIS appeal is directed against the order of the Additional Collector of Central Excise and Customs, Trichy dated 7.3.86 imposing a fine of Rs. 5000/- in lieu of confiscation of 45 recorded video cassette tapes of foreign origin besides a penalty of Rs. 5000/- under Section 112 of the Customs Act, 1962 (hereinafter referred to as the Act). On 24.10.85 the officers attached to Customs Intelligence Unit, Hqrs. Office, Trichy and Preventive Officers of the Excise Preventive Unit, Coimbatore searched the business premises of the appellant at Coimbatore who is running a Video Lending Library at 7, Avinash Raod, Coimbatore and seized 266 Nos. pre-recorded video cassette tapes made in Japan and 298 Nos. pre-recorded video cassette tapes with the making Japan erased on the ground that the appellant could not satisfactorily account for the licit acquisition and possession of the same. Proceedings instituted against the appellant under the provisions of the Customs Act, 1962. eventually culminated in the present impugned order now appealed against,
(2.)Shri Ramachandran, the learned consultant for the appellant submitted that the seizure of 45 recorded video cassette tapes concerned in the present appeal were imported in the year 1983 by M/s. Radha Sons International, Bombay from whom the appellant purchased the same under six invoices. It was urged that the licit acquisition of the said 45 tapes by the appellant in the year 1983 is accepted by the adjudicating authority under the impugned order. It was therefore contended that when the tapes in question were imported in 1983 and the notification under Section 11-B of the Act was issued only on 20.7.84 the tapes would not become liable for confiscation particularly when they were pre-recorded at that time and had suffered excise duty as well.
Shri Krishnan, the learned DR urged that the notification under Section 11-B under Chapter IVA No. 205/84 dated 20.7,1984 mentions "Video Cassette Tape" and the notification does not say that pre-recorded video cassette tape is excluded from its purview or its operation. The learned DR therefore urged that the video cassette tapes in question are covered by aforesaid notification and the appellant who admittedly was in possession of the same oh the date of notification should have within 7 days from that date delivered to the proper officer a statement containing particulars of the same and admittedly the appellant not having filed any such statement in respect of the video cassette tapes under confiscation, the goods would become liable for confiscation under Section 111(p) of the Act entailing a consequential penalty under Section 112 of the Act. The fact that the goods under seizure and confiscation namely video cassette tapes were lawfully acquired by the appellant through bonafide purchase in the year 1983 from M/s. Radha Sons International, Bombay is not disputed by the department and is indeed admitted by the adjudicating authority himself under the impugned order in para 7 and likewise the fact that the notification No. 205/84 dated 20.7.1984 issued under Section 11-B - Chapter IVA of the Act covering the Video Cassette Tape came into existence on 27.9.1984 does not admit of any controversy either. Therefore the only question that arises for my consideration in the present case is whether the expression of the word "Video Cassette Tape" figuring in the aforesaid notification would refer only to blank video cassette tape or would cover pre-recorded video cassette as well. In my opinion there is no warrant to restrict the scope of the expression video cassette tape to blank video cassette tape alone and the very spirit of the notification is merely to regulate, control and check the video cassette tapes in the possession of the persons dealing in that. Such a control would not be possible if one were to construe the expression video cassette tape in the aforesaid notification as one excluding from its operation pre-recorded video cassette tape. The plea of the consultant that the video cassette tapes under confiscation have suffered excise duty is not relevant in appreciating the question with reference to the applicability of the notification under Section 11-B in regard to the goods in question. Whether video cassette tapes have suffered excise duty or have not suffered excise duty will not make any difference at all with reference to the applicability of the aforesaid notification in respect of the same. I, therefore, find that notwithstanding the fact that the goods in question have been lawfully acquired by the appellant as is found by the adjudicating authority under the impugned order, inasmuch as admittedly the appellant has not in terms of Section 11-C of the Act within 7 days from the date of the said notification delivered to the proper officer a statement in the prescribed manner containing the prescribed particulars in relation to the video cassette tapes which are notified goods owned and possessed by him, there is a contravention of Section 11-C of the Act which would entail the confiscation of the goods under Section 111(p) of the Act. I, therefore, uphold the finding of the adjudicating authority in respect of the confiscability of the video cassette tapes but, however, taking into consideration the admitted fact that the goods were lawfully acquired by the appellant under a valid purchase coupled with the fact that the appellant was misled to believe that the statutory obligation to give a statement containing the relevant particulars in terms of 11-C in respect of the notified goods would arise only in respect of blank video cassette tapes, I am inclined to hold that the contravention in the peculiar facts and circumstances of this case is technical in nature and venial in character meriting a sympathetic consideration. In this view of the matter I reduce the fine from Rs. 5000/- to Rs. 2500/- (Two thousand five hundred only). So far as the penalty is concerned in the peculiar facts and circumstances of this case, I am of the opinion that interests of justice would be met if the appellant is given a stern admonitioin. Accordingly I set aside the penalty by admonishing the appellant and let him off with an admonition.



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