R.K. ELECTROMECH Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE relevant facts of the case are as under : -

(2.) THE appellants had imported a consignment of goods and filed Bill of Entry No. 94, dated 19 -4 -2001 through CHA for clearing the goods at concessional rate of customs duty in terms of entry No. 361 of the Table annexed to Notification No. 17/2001 -Cus., dated 1 -3 -2001. The description of the goods as shown in the Bill of Entry was "PARTS OF VIDEO GAMES AS PER INVOICE" and the Customs Tariff Heading shown was 9504.90. In the relevant invoice dated 3 -4 -2001, the description of the goods was given under a main heading "PARTS OF VIDEO GAMES" and three sub -headings serially numbered 1, 2 and 3. Sl. No. 1 was captioned MODEL TERMINATOR 8 BIT and consisted of 10 parts mentioned at A to J, each part (barring the last part viz. SCREW mentioned at J which was in a quantity of 132000 pieces) quantified as 6000 pieces. Sl. No. 2 was captioned MODEL POLYSTATION 8 BIT and consisted of 7 parts mentioned at A to G, each part quantified as 550 pieces. The description against Sl. No. 3 was COB FOR MAIN CONSOLE FOR 8 BIT VIDEO GAME, and the quantity thereof was shown as 500 pieces. On examination of the goods, the Customs authorities found the goods described at Sl. No. 1 and 2 to be Video games of a kind used with T.V. receiver, classifiable under Customs Tariff sub -heading 9504.10. They considered the parts of Video games described at Sl. No. 3 also as classifiable under the same sub -heading in terms of Chapter Note 3 of Chapter 95 of the Customs Tariff Act. On this basis, the authorities took the view that all the goods covered by the Bill of Entry were chargeable to duties of Customs at normal rates and not eligible for the benefit of concessional rate of basic customs duty under Notification No. 17/2001 -Cus. The authorities rejected the claim of the appellants that the goods were classifiable as parts of Video games only under customs tariff sub -heading 9504.90 attracting the concessional rate of basic customs duty. The department accordingly issued a show cause notice to the party alleging that they had mis -declared and mis -classified the goods with intent to evade customs duty thereby contravening the provisions of Section 46 of the Customs Act, and further alleging that the goods were liable to confiscation under Section 111(m) of the Act and the importer was liable to be penalized under Section 112(a) of the Act. The allegations were denied. The Commissioner of Customs, who adjudicated the dispute, confiscated the goods (with option for redemption on payment of a fine of Rs. 10 lakhs) and imposed a penalty of Rs. 2 lakhs on the party, after classifying the goods under Tariff sub -heading 9504.10. The order of the Commissioner was set aside by this Tribunal as per Final Order No. 79/2002 -D, dated 21 -3 -2002 in Appeal No. C/421/2001 -D and the Commissioner was directed to re -adjudicate the matter in the light of the judgments referred to in the Final Order. Ld. Commissioner of Customs has passed a fresh order in the remanded proceedings, which is no different in its terms from the one he had passed earlier. Hence, the present appeal.

(3.) IT appears from the record that the goods described at Sl. No. 3 of the invoice, viz. "COB FOR MAIN CONSOLE FOR 8 BIT VIDEO GAME" have been held to be classifiable under sub -heading No. 9504.10 and eligible for the benefit of confessional rate of duty under Notification No. 17/2001 -Cus. As regards the other two items mentioned at Sl. No. 1 and 2 in the invoice, the adjudicating authority has classified them under the same sub -heading [9504.10] but denied the benefit of confessional rate of duty under the Notification to the said goods. In respect of these goods, the order recorded by the lower authority reads as under: -