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2. Shri Vinod Awtani, Learned Chartered Accountant appearing on behalf of the appellant submits that they placed an order for import of marble slab US $ 35 PSM in the month of August 2008. However, import of polished marble took place in December 2008. In the meantime, appellant obtained the EPCG licence wherein import of marble was allowed subject to condition that the CIF value of imported marble should not be less than US $ 50 PSM. The appellant vide their letter dated 11/12/2008 agreed to pay duty assessed at CIF value of US $ 50 PSM for the marble slabs imported as per the Policy. He submits that the appellant did not have any mala fide intention and violations of the conditions specified in the Notification. Any violation of the conditions specified in the Notification was due to bonafide belief that marble was of OGL item. He submits that as per ITC (HS) classification of marble under import is classified under Chapter Heading 6802 9910 and shall be free provided that CIF value of import is US$ 50 PSM or above of marble imported. He submits that the department has assessed the CIF value as US $ 50. Therefore, the condition in Notification No. 18(RE-2008) and stipulated under licence stands fulfilled. Therefore, the adoption of value of US $ 50 PSM makes goods restriction free. Therefore, no confiscation of goods and penalty was warranted. He alternatively submits that the appellants are actual user importer, therefore, a lenient view may be taken. He placed reliance on the following judgments.