ORDER
S.S. Sekhon, Member (T)
1. Appellants had imported and filed a BE No. 633716, dated 5-1-2000 IGB 1971/91 seeking assessment of 35550 pcs of size 1/2″ VHS/Type VCR – Blank Video Cassette (Panasonic) under Heading 8523.90 of ICT and 85239003.20 for ITC.
2. The appellants had demonstrated that the goods answered to the description of Heading 85239003.20 by a practical application of the imported cassette working on a SVHS Video Cassette Recorder/M II SVHS VCR system. The Commissioner rejected the claim by holding that entry 85239003.20 covered metal tape for digital videos for delivery professional quality performance M II was required for editing and was not in the VHS format. The S. V.H.S. tapes were of high quality and even if the imported goods could be used in SVHS. VCR they could not be equated to the High quality reproduction propertied of the S quality VHS tapes. Holding analogy of mono and stereo audio cassette it was held that the imports were restricted. Loading of value was ordered and confiscation under Sections 111(d) and 111(m) arrived and redemption fine offered along with penalty.
3. Entry 85239003.20 ITC reads as under –
“1/2 Video Cassette suitable to work with Betacam/Betacam SP/M.II S-VHS/Digital-S Type VCR.”
The goods were demonstrated to work on and with M.II S-VHS Video Cassette Recorder. The entry on a plain reading does not envisage the import of any technologically sophisticated Cassette as is being interpreted by the Commission. The Cassette are shown to work with MII S-VHS/Digital Type-VCR would be covered. The entry only ‘refers’ to certain types of Cassettes Tapes and the analysing of mono and stereo audio tapes cassette brought out by the Commissioner is not called for or applicable. The appellants have produced a clarification of DGFT vide F. No. 01/93/180/0008/AF/00/485, dated 30-8-1999 to the effect that the imported Cassettes were covered under entry 85239003.20. There is therefore no cause to order confiscation under Section 111(d).
3.2 As regards valuation, all factors accepting the transaction value exist and are not impugned. The Commissioner has not alluded to any actual import at USD 1.10 as held by him. Transaction value cannot be upset on quotations/proforma invoices is well settled law. The valuation at USD 0.70 cannot be imputed. Confirmation under 111(m) cannot be upheld
3.3. When under valuation charge is not upheld the confiscation under Section 111(m) and under Section 111(d) for ITC offence are also not upheld, there is no case or cause for penalty under Section 112 of the Customs Act, 1962. The orders impugned are set aside and appeal allowed.