Creative Peripherals & Distribution Ltd. v. Commissioner Of Customs .

assessment, by classifying the same under CTH 8525 8020 as 'Digital Still Image Video Camera'. The appellant had claimed exemption from Basic Customs Duty in terms of Notification 50/2017 - Cus, dated 30.06.2017. However, the assessing officer had rejected the benefit of duty exemption claimed by the appellant and classified the subject goods under CTH 8525 8090.Being aggrieved with the assessment of Bills of Entry, the appellant had filed appeals before the learned Commissioner of Customs (Appeals), Mumbai - III, which were rejected vide the impugned orders dated 27.12.2018 and 28.06.2019.The learned Commissioner (Appeals) has upheld classification of the subject goods under CTH 8525 8090, solely for the reason that the imported digital cameras are capable of capturing still as well as moving images. In support of rejection of the classification made by the appellant and for denying the benefit of the Notification dated 30.06.2017 (supra), the learned Commissioner (Appeals) has observed that the cameras in question fails to satisfy the definition of 'digital still image video camera' as provided in the explanation to Sr. No. 13 of Notification No. 25/05 - Cus, dated 01.03.2005 as amended vide Notification No. 15/2012 - Cus., dated 17.03.2012 and that since the cameras in question have capability to function as both digital still camera and video camera, they are appropriately classifiable under CTH 8525 8090 as 'other'. Being dissatisfied with the impugned orders, the appellant has preferred these appeals before the Tribunal.

3. Shri N.D. George, learned Advocate for the appellant submitted that the Tariff Item 8525 8020 basically refers to 'Digital Cameras', without any further specification on the type of images to be captured; that going by the description of the product mentioned in the said Tariff Item, it would cover all types and all varieties of digital cameras, capable of capturing still as well as video images. He has relied upon the decision of this Tribunal in the case of Sony India Vs Commissioner of Customs [2006 (194) ELT 11 (Tri)] and the order dated 23.12.2013 of the United States Court of International Trade

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passed in the case of Sony Electronics, INC, to state that Digital Still Image Video Camera capable of capturing still as well as video images would be classifiable under Tariff Item 8525 8020 and not under 8525 8090, as claimed by the Revenue.

4. Shri George further submitted that the impugned orders have incorrectly referred to the Explanation to Sl. No.13 of Notification No. 25/05-Cus., dated 01.03.2005 for denying the benefit of duty exemption provided under Sr. No. 502 of Notification No. 50/17-Cus., dated 30.06.2017; there is no explanation appended to the said notification dated 30.06.2017, in specifically defining 'still image video camera' for the purpose of obtaining the duty exemption. He also submitted that reference made to the Circular No. 32/2007-Cus., dated 10.09.2007 in the impugned order is inappropriate and inapplicable to the facts of the present case inasmuch as the notification dated 30.06.2017 does not provide for any restriction or condition on importation of the subject goods. By relying upon the judgment in the case of Tata Teleservices Ltd. Vs. Commissioner of Customs [2006 (194) ELT 11 (S.C.)] and Continental (India) Vs UOI [2003 (154) ELT 37 (Guj.)], he submitted that CBEC Circular cannot impose limitation or restriction, which are not provided in the notification, whose benefit has been claimed by the importer-appellant. The learned Advocate for the appellant has also referred to the technical literature and the certificate dated 23.05.2018 issued by the overseas manufacturer of the impugned goods to support the argument that the goods in question are classifiable under Tariff Item 8525 8020 and thereby eligible to the duty exemption.

5. On the other hand, Shri Ramesh Kumar, learned Authorised Representative, appearing for the Revenue reiterated the findings recorded in the impugned order. He further referred to the technical literature of the product submitted by the appellant to demonstrate that the imported goods can perform both the functions of taking video as well as still images and therefore, the classification under CTH 8525 8090, which refers

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to 'other goods', was considered by the adjudicating authority. The learned AR relied upon the decision of this Tribunal in the case of SRP Enterprises Pvt. Ltd. Vs. CCE, Mumbai [2019 ELT 840 (Tri.-Mum.)] to justify the stand of Revenue in support of classification of the impugned goods under CTH 8525 8090. Alternatively, the learned AR submitted that as the primary function of imported Digital Cameras is for capturing still images, the same should be classified under CTH 8525 8030, as per the clarification furnished by CBEC vide Circular dated 10.09.2007. Further, the learned AR argued at length that since there is no ambiguity in reading the relevant Tariff Item vis-a-vis the exemption notification(s), the benefit of duty exemption in respect of the subject goods should not be available to the appellant. In this context, he has placed reliance on the judgment of Hon'ble Supreme Court in the case of C.C. (Import) Vs Dilip Kumar & Company [ 2018 (361) ELT 577 (S.C.)].

6. The issues involved in these appeals for consideration by the Tribunal are whether the imported goods namely, 'GoPro HERO5 Black' Action Camera is classifiable under CTH 8525 8020 (as claimed by the appellant), or under CTH 8525 8090 (as affirmed by Revenue) and availability of the benefit of duty exemption provided under the Notification No. 50/2017-Cus., dated 30.06.2017 for importation of such goods.

7. For better understanding of the case, the relevant Customs Tariff Heading, Chapter Note of Harmonized System of Nomenclature (HSN) and Sr. No. 502 of notification dated 30.06.2007 are reproduced herein below:

7.1. "Tariff Heading 8525.80

"8525 TRANSMISSION APPARATUS FOR RADIO-BROADCASTING OR

TELEVISION, WHETHER OR NOT INCORPORATION RECEIPTION

APPARATUS OR SOUND RECORDING OR REPRODUCING APPARATUS;

TELEVFISION CAMERAS, DIGITAL CAMERAS AND VIDEO CAMERA

RECORDERS

…

….

8525 80 ....Television cameras, digital cameras and video camera recorders:

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8525 80 10 …. Television Cameras 8525 80 20 …. Digital cameras 8525 80 30 ….. Video camera recorders 8525 80 90 .... Others"

7.2. Chapter Note of HSN for Heading 852580

(B) TELEVISION CAMERAS, DIGITAL CAMERAS AND VIDEO CAMERA

RECORDERS

This group covers cameras that capture images and convert them into an electronic signal that is:

(1) Transmitted as a video image to a location outside the camera for viewing or remote recording (i.e. television cameras); or

(2) Recorded in the camera as a still image or as a motion picture (i.e. digital camera and video camera recorders).

Many of the cameras of this heading may physically resemble the photographic cameras of heading 90.06 or the cinematographic cameras of heading 90.07. the cameras in heading 85.25 and the cameras in Chapter 90 typically include optical lenses to focus the image on a light-sensitive medium and adjustments to vary the amount of light entering the camera. However, photographic and cinematographic cameras of Chapter 90 expose images onto photographic film of Chapter 37, while the cameras of this heading convert the images into analogue or digital data. …………

………….

………….

………….

………….

In digital cameras and video camera recorders, images are recorded onto an internal storage device or onto media (e.g. magnetic tape, optical media, semiconductor media or other 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.

7.3. Notification No.50/2017 dated 30.06.2017

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Video Cameras

8.1. In these cases, the appellant had claimed the classification of the imported goods namely, "GoPro HERO5 Black" Action Camera under CTH 8525 8020, which describes the goods as

"Digital Cameras". There is no definition provided for the Digital Camera. Neither the Customs Tariff nor the notification dated 30.06.2017 has assigned any specific meaning for the said goods. The HSN Explanatory notes to Heading 85.25 too do not have a definition for such goods as such. But the said Explanatory note at paragraph 7.2 above has described the characteristic of a digital camera by explaining that the images are recorded on an internal storage device like semiconductor media; the camera has an output terminal, to send the images to other viewing machines. The features of a digital camera as outlined in the Explanatory Notes are in conformity with the definition provided in various dictionaries and the technical authoritative journals provided in the website, which were relied upon by the learned Advocate for the appellant. According to the technical information, the 'digital cameras' are those wherein the images and/or video are stored digitally (without a film) in the camera and can be viewed digitally on other devices like computer etc. It is an admitted fact on record that the cameras imported by the appellant were meant for capturing images/videos and stored the same on semiconductor media for viewing digitally on the camera itself and on other digital devices.

8.2. We have also perused the certificate dated 23.05.2018 issued by the overseas supplier of impugned HERO 5 Black model cameras. It has been clarified that those cameras manufactured by them are digital still image video cameras; that they are having both still image and video camera recorders and that the products are marketed by them as 'action camera', as the camera is capable of being used while performing action/adventure sports etc. Further, it has also been clarified in the said certificate that the cameras can capture both still

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images and videos. Furthermore, on perusal of the sales invoices issued by the appellant, it also reveals that the cameras in question were sold by them as action cameras. The law is well settled in the case of Associated Cement Co. Ltd. Vs. State of M.P. [2004 (168) ELT 151 (S.C.)], wherein the Hon'ble Apex Court have 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.

8.3. For the period up to the year 2005-06, 'still image video cameras' and 'video camera recorders'; 'digital cameras' were classified under Tariff Item 8525 4000 of the First Schedule to the Customs Tariff Act, 1975 (CTA). However, in the year 2006- 07, the Tariff Item was aligned with the Harmonised System of Nomenclature (HSN). As a result of the alignment, digital still image video cameras came to be classified under Tariff Item 8525 8020 and video camera recorders were classified under Tariff Item 8525 8030 of the CTH. With regard to proper classification of "digital still image video camera", in the relied upon case, the Plaintiff M/s Sony Electronics INC. prayed for a ruling from the 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, the U.S. Court vide judgment dated 23.12.2013 had opined that 'digital still image video camera' is that which is capable of recording still images as well as videos, in digital 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

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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 8020 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 8030 is not acceptable by the Bench at this juncture. Such issue was neither the subject matter of dispute at the assessment nor the first appellate stage. Thus, the focus before the Tribunal is confined for consideration of the rival classification of the imported goods either under Tariff Item 8525 8020 or 8525 8090 and not otherwise. The cameras imported by the appellant are satisfying the requirements of the HSN notes, explaining the characteristics of a Digital Camera. With regard to proper classification of goods, Rule 3(a) of the General Rules for Interpretation of the Harmonized System provides that the heading which endowed with the most specific description shall be preferred to headings, providing a more general description. Further, Rule 4 of the said Rules also explains that goods which cannot be classified in accordance with the said Rules shall be classified under the heading appropriate to the goods to which they are most akin. The impugned order, in this case, has accepted the fact that the cameras in question are Digital Cameras. But due to short in recording capacity and low resolution in capturing the images, it has changed the classification and also denied the benefit contained in notification dated 30.06.2017. On close scrutiny of the product description mentioned in Heading 8525, we are not inclined to accept classification of subject goods under Tariff Item 8525 8090, for the reason that the description under such sub-heading as 'others' is of more in general type. On the contrary, by accepting the trade parlance theory, confirmation of the manufacturer, HSN clarificatory notes etc., we find that the proper interpretation of the law and statute demands that the impugned goods are to be more appropriately classifiable under Tariff Item 8525 80 20, as claimed by the appellant.

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9.1. We find that the learned Commissioner (Appeals) in the impugned orders has denied the benefit of 'nil' rate of Customs Duty provided under the notification dated 30.06.2017 on the ground that the conditions prescribed in the previous Notification No. 25/2005-Cus., 01.03.2005 and the amended Notification No.15/2012-Cus., dated 17.03.2012 regarding the capability of video recording have not been fulfilled. The relevant observations made in the impugned orders are extracted herein below:-

"5. I have carefully gone through the facts and submissions of the case. The issue involved in the present matter is whether to extend the benefit under Sr. No 502 of notification no. 50/2017- Cus dated 30.06.2017 which is applicable to "Digital still images video cameras" classifiable under CTH 85258020. I find that "Digital still images video cameras" were previously falling under CTH 85254000 and were exempted from BCD vide Notification No. 25/2005-Cus dated 01.03.2005 at Sr. No. 13. Further amendment had been made in the said notification vide notification 15/2012 dated 17.03.2012 vide which

"Digital still image video cameras" had been explained in the following manner:

'Explanation - For the purposes of this entry, "digital still image video camera" means a digital camera not capable of recording video 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'

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 lower resolution and lesser number captured per second, the clarity of video shall be of substandard quality in comparison to camcorder. Having gone through the primary difference between the digital still image video camera and video recording camera (camcorder), if the above definition of digital still video camera as provided under notification no. 15/2012-cus is taken into consideration, I find that digital still image video camera cannot record video of 800x600 pixels and more resolution (in other words it can record less than 800x600 pixels resolution video only and therefore the maximum

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upper limit is 800x600 pixels); secondly it cannot record at a speed which exceeds 23 frames per second (here again the speed of 23 per second is its maximum speed or upper limit) and at the same time its total one time recording using its maximum storage capacity including expanded capacity cannot be more than 30 minutes.

6. I find that the technical details as reflected in the technical literature of various models and also explained during the course of personal hearing, the cameras imported by the appellant are action cameras which can be mounted on any moving object to record high resolution videos. I find that cameras imported by the appellant are capable of recording of video having resolution 1080 and up to 4K, at the speed of more than 30 frames per second. Thus, these two conditions are not satisfied by the respondent and thus the cameras imported by them are not eligible for benefit under s.no. 502 of notification no. 50/2017-cus dated 30.06.2007. Apart from the fact that the specific description and its further explanation as regards to the goods which will be covered under the nomenclature of Digital Still Image Video Camera as provided vide Customs Notification No. 15/2012, I find that CTH 85258020 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. 15/2020. 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."

9.2. The Central Government vide Notification No. 25/2005- Cus, dated 01.03.2005 has exempted the 'digital still image video cameras' falling under the Tariff Item 8525 8040 from the whole of the duty of customs leviable thereon under the first schedule to the Tariff Act, 1975. After alignment of the said Tariff Item in the HSN, the notification dated 01.03.2005 was substituted w.e.f. 01.01.2007 and the Tariff Item was re- numbered as 8525 8020. No condition was prescribed in the said notification for grant of exemption from payment Customs duty. Subsequently, the above notification dated 01.03.2005 was amended vide Notification No. 15/2012-Cus, dated 17.03.2012. The effect of amendment was that against Sl. No. 13, for the entry in column (3) of the earlier notification dated 01.03.2005 in respect of the product "Digital still image video cameras", an explanation was added by way of substitution, which reads as -

"For the purpose of this entry, "digital still image video camera" means a digital camera not capable of recording video with

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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". While the aforementioned notification dated 17.03.2012 was in existence, the Central Government, vide another Notification No. 50/2017- Cus, dated 30.06.2017, has prescribed 'Nil' rate of duty in respect of the said product, without attaching any condition thereto. The notification dated 30.06.2017 was issued by the Central Government in supersession of the provisions contained in the earlier notification dated 17.03.2012, referred supra.

9.3. In the present case, it is an admitted fact on record that the appellant had claimed the benefit of notification dated 30.06.2017, which was purportedly denied by the authorities below on the ground that imported cameras are not capable of recording the images as per the parameters prescribed under notification dated 17.03.2012. On careful examination of both the notifications dated 17.03.2012 and 30.06.2017, 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 8020 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 - Vs - Mangilal Pindwal, reported in MANU/SC/0549/1996have 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 intent behind the superseding

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notification dated 30.06.2017 (in dispute) is manifest that the embargo created in the earlier notification dated 17.03.2012 should not be looked into, meaning thereby that the 'Digital Still Image Video Cameras' falling under Tariff Item 8525 8020 should be eligible for the benefit of duty exemption and the criterion of quality and capacity to record images/events provided in the explanation appended to the earlier notification dated 17.03.2012 should not be insisted upon by the Customs authorities. In the present case, it is an undisputed fact that the learned Commissioner (Appeals) has accepted that the cameras in question imported by the appellant have functionality of both digital still cameras as well as capable of capturing videos. Thus, we are of the considered opinion that the duty exemption provided under notification dated 30.06.2017 for 'digital still image video camera' should be available to the appellant.

10.1. Reference made by the learned AR for Revenue to the Circular No. 32/2007-Cus, dated 10.09.1997 is incorrect on two folds. Firstly, the said circular was issued with respect to Sl. No. 13 of Notification No. 25/2005-Cus., dated 01.03.2005 and secondly, the said circular evidently referred to the restriction on video recording as per the explanation provided within the notification defining the goods as 'digital still image video camera'. In the case in hand, the appellant had claimed the duty exemption provided under the Notification No. 50/2017-Cus., dated 30.06.2017, where under no condition was prescribed for availment of the benefit. The law is well settled by the Hon'ble Apex Court in the case of Tata Teleservices Ltd. (supra) that the CBEC circular cannot impose limitation or restriction, which is not provided in the notification itself.

10.2 The ratio of judgment of Hon'ble Supreme Court in the case of Dilip Kumar & Co (supra) is inapplicable to the facts of the present case inasmuch as there is no ambiguity in reading of the notification in dispute. The notification dated 30.06.2017 clearly grants the benefit of duty exemption to Digital Still Image Video Camera of Tariff Item 8525 8020. As long as the imported

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goods are categorized under above Tariff Item and have capability of recording still images as well as video, they will be eligible for the benefit, which has been clearly spelt out in the said notification.

10.3. The decision of this Tribunal in the case of M/s SRP Enterprises (supra) relied upon by the learned AR for Revenue is distinguishable from the facts of the present case. The product in dispute in the said decided case was 'TCL DV52', which is a handicam i.e. a video camcorder. Such product is not at all comparable with the cameras in question imported by the appellant, for the reason that the Tariff Heading under 8525 has separately classified the video camcorder and the cameras in question imported by the appellant.

11. In view of the foregoing discussions and analysis, we do not find any merits in the impugned orders in classifying the disputed goods under Tariff Item 8525 8090 and denying the benefit of Notification No. 50/2017 dated 30.06.2017. Accordingly, after setting aside the same, we allow the appeals in favour of the appellant with consequential relief, if any, as per law.

(Order pronounced in the open court on 17/07/2020 )

(S.K.Mohanty) Member (Judicial) (P. Anjani Kumar) Member (Technical)

HK

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