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2015 (2) TMI 781 - AT - CustomsImport of Sub-standard quantity goods - Re-export - Confiscation of goods - Violation of Drug and Cosmetics Act, 1940 and rules - Statutory sampling plan not followed- Not tested as per Drugs and Cosmetics rules. - Held that:- On going through the above provision as regards the standard of goods i.e. condoms, it is provided that standard of mechanical contraceptives should be as provided under the Schedule R. According to which testing of Bursting Volumes and Pressure test should be done in accordance with plan set out in Annexure III to this Schedule. Annexure III prescribed that for batch size 150001 lakhs to 5 lakhs, the sample size should be 315 pieces and out of 315 pieces if the rejection number is 11 or more the batch is liable for rejection. As against the aforesaid method of testing provided under Drugs and Cosmetics Rules, 1945, it is observed from the test report given by Central Drugs Testing Laboratory, Chennai, the norms prescribed in Rules were not followed inasmuch as batch size taken 45 pieces, therefore the test carried out by the Central Drugs Testing Laboratory, Chennai can not be considered in accordance with law. On this serious discrepancy, the appellant pointed out to the authority and also requested the re-testing of the sample in accordance with the method prescribed under Drugs and Cosmetics Rules, 1945. The same was neither considered nor sample was re-tested. Therefore, I am of the view that subject goods was not liable for confiscation. I also agree with the Ld. Counsel that Rule 141 of the Drugs and Cosmetics Rules, 1945 provides for re-shipment of the goods and goods admittedly re-exported. For this reason also the goods are not liable for confiscation and also not liable for consequential penalty. The ratio applicable of the judgments- [2008 (7) TMI 671 - CESTAT, MUMBAI] [2009 (11) TMI 773 - CESTAT BANGALORE] relied upon by the Ld. Counsel are squarely applicable in the present case. Decided in favour of appellant.
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