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2010 (9) TMI 615 - AT - Central ExciseConfiscation - Drugs ZOLEDRONATE export - Not produce NOC for export - The appellants filed the shipping bills for export of the goods viz. ZOLEDRONATE. The said product can be used as drugs only after processing the same with the mixture of other chemicals - find that the impugned goods are covered under the definition of drugs as per Section 3(b)(iii) of the Drugs and Cosmetics Act, 1940 - Held that the Drugs and Cosmetics Act, 1940 deals with the import of the goods or local manufacture and sale of the goods but there is no provision for export of the impugned goods - Hence, the goods can be exported freely - Thus, the allegation that NOC required to export the impugned good, is not sustainable - the order confiscating the impugned goods is set aside. Penalties - The forged signature of the Asst. Drug Controller, it is true that no expert opinion has been obtained to corroborate the allegation made against the appellants - The allegation of forged signature is a serious allegation which is to be dealt with severely but no efforts have been made to deal such allegations by the department and merely penalties were imposed on the appellants - With regard to penalties, when the goods are not liable for confiscation, penalties on the appellants is also not leviable.
Issues:
1. Confiscation and penalty of impugned goods by the exporter. 2. Imposition of penalties on the Clearing House Agent (CHA) and individuals. 3. Requirement of No Objection Certificate (NOC) for export of goods. 4. Allegation of forged signature of the Asst. Drug Controller. 5. Interpretation of the Drugs and Cosmetics Act, 1940 regarding export of goods. 6. Validity of penalties imposed without expert opinion on forged signature. Analysis: 1. The exporter, M/s. Calyx Chemicals and Pharmaceuticals Ltd., filed an appeal against the confiscation and penalty of the impugned goods, ZOLEDRONATE. The exporter argued that the goods did not require a No Objection Certificate (NOC) from the Asst. Drug Controller for export as they did not qualify as drugs or medicine under the Drugs and Cosmetics Act, 1940. The Tribunal agreed that the impugned goods fell under the definition of drugs but noted that the Act does not regulate the export of such goods, allowing for their free export without NOC. 2. The Clearing House Agent (CHA) and individuals appealed against the penalties imposed. The CHA claimed they were unaware of the forged NOC and should not be penalized. The Tribunal highlighted the lack of expert opinion on the alleged forged signature of the Asst. Drug Controller, emphasizing the seriousness of such allegations. As the goods were not subject to confiscation, the penalties on the appellants were deemed unjustifiable and set aside. 3. The issue of the NOC requirement for exporting the impugned goods was central to the case. The Tribunal clarified that as per the Drugs and Cosmetics Act, 1940, there was no prohibition on the export of the goods without an NOC. The allegation that an NOC was necessary for export was deemed unsustainable, leading to the dismissal of related charges. 4. The allegation of a forged signature by the Asst. Drug Controller was addressed by the Tribunal, noting the absence of expert opinion to substantiate the claim. Despite the seriousness of such an accusation, the department failed to provide sufficient evidence, resulting in the order for confiscation being set aside. 5. The interpretation of the Drugs and Cosmetics Act, 1940 was crucial in determining the legality of exporting the impugned goods. The Tribunal emphasized that while the goods fell under the Act's definition of drugs, there were no provisions regulating their export. Previous clearances without NOC requirements further supported the conclusion that the goods could be exported freely. 6. In conclusion, the Tribunal set aside the impugned order, allowing the appeals with consequential relief. The judgment highlighted the need for proper evidence and adherence to legal procedures in cases involving serious allegations like forged signatures.
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