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2018 (3) TMI 1393 - AT - CustomsRe-export of impugned goods - confiscation - penalty - import of Pharmaceutical Gelatin Bloom 220 - restricted/prohibited goods or not - Held that - the appellant have not ventured to import any prohibited goods and or restricted goods. Further the item imported was permissible to be imported freely subject to compliance of standards and permission by Wild Life (Protection) Act, 1972 CITES. The only irregularity found is that upon test, two of the parameters (biological criteria) were found to non-compliant - there was a delay in testing and the samples were drawn by the Customs officers and not by the experts of FSSAI or Staff of Sriram Institute for National Research, Delhi - There were every chances of contamination due to non-handling as per the required criteria. There is no mala-fide on the part of the appellant-importer nor a case is made out against them that they have ventured to import prohibited/restricted goods in violation of the provisions of the Customs Act - Confiscation as well as penalty set aside. Appeal allowed - decided in favor of appellant.
Issues:
Classification of imported goods under CTH 35030020, duty exemption under Advance Authorization Scheme, compliance with Wild Life (Protection) Act, 1972 & CITES, confiscation, penalty, appeal against order of confiscation and penalty, applicability of Section 111, compliance with biological criteria, negligence in importing goods, comparison with legal precedent. Detailed Analysis: 1. Classification and Duty Exemption: The appellant imported Pharmaceutical Gelatin Capsule Grade, classified under CTH 35030020, seeking duty exemption under the Advance Authorization Scheme. The goods were found to be subject to the Wild Life (Protection) Act, 1972 & CITES regulations, requiring permission for import. The total assessable value and duty foregone were specified in the bill of entry. 2. Confiscation and Penalty: The impugned goods did not comply with the biological criteria upon testing, leading to confiscation and imposition of redemption fine and penalty by the Adjudicating Authority. The appellant contested the confiscation, arguing no mis-declaration occurred, and the non-compliance with two parameters was due to sensitive biological tests and potential sample contamination during handling and testing delays. 3. Appeal and Legal Precedent: The appellant appealed to the Commissioner (Appeals), contending that Section 111 applies only in specific circumstances, none of which were present in their case. They emphasized the absence of mala-fide intent, timely dispatch from the country of origin, and the offer by the exporter to take back the goods. The Revenue, however, supported the confiscation and penalty, citing negligence in importing goods of inferior quality and referencing a Supreme Court ruling on penalty and confiscation under the Customs Act. 4. Judgment and Conclusion: After considering the arguments, the Judge found that the appellant did not import prohibited or restricted goods but faced irregularity in biological criteria compliance due to testing delays and potential sample contamination. The lack of mala-fide intent was highlighted, supported by a certificate of analysis from the load port. Consequently, the order of confiscation and penalty was set aside, and the appeal was allowed with consequential relief to the appellant, emphasizing compliance with standards and permissions under relevant regulations. This detailed analysis covers the classification, compliance, confiscation, penalty, appeal, and legal precedent aspects of the judgment, providing a comprehensive understanding of the issues addressed and the final decision rendered by the Appellate Tribunal.
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