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2019 (4) TMI 445 - CESTAT HYDERABADSmuggling - export of drugs - prohibited goods or not - allegation in the show-cause notice is that the export of the drug in question was prohibited and 22 consignments of this drug were exported in violation of this prohibition and therefore such exports could amount to smuggling in terms of Section 2 read with 113 of the Customs Act - Confiscation - Held that:- The very basis of the show-cause notice that the export of the drug was prohibited is not correct as has been clarified by the Central Drugs Standard Control Organisation vide their letter dated 30.12.2011. The Notification prohibited manufacture, sale and distribution but did not specifically mention export. A doubt can arise whether sale does not include sale through export also. This point was clarified by the very organisation which is supposed to administer the prohibition. Therefore, the drugs in question were not prohibited drugs for export during the relevant period. The related question is whether appellant was required to take NOC from the Drugs Controllers General of India before export and answer is “Yes”. The appellants have not taken NOC before export. In such a case, when the shipping bills were processed, the exports could have been stopped by the Customs Officer who were processing the goods. Even if the Assessing Officer had missed out the fact that no NOC was submitted, the officer issuing Let Export Order is expected to verify all documents before issuing Let Export Order - It was wrong on the part of the appellant to export the drug without obtaining NOC. It was equally wrong on behalf of the Customs Officer to have cleared the export consignment without the NOC. It does not appear from the show-cause notice that the customs officers have been put to notice for clearing the consignment without NOCs or that any action has been taken against them. The lapse of the appellant in not obtaining an NOC before exporting the drug requires confiscation of the goods which were already exported under Section 113. This section provides for confiscation of goods attempted to be improperly exported - however, once the goods are exported they cease to be export goods and will not be covered by Section 113. It was quite logical why Section 113 did not cover confiscation of goods already exported. As the goods would be outside India and the Customs Act, as per Section 1(2) did not extend outside India during the relevant period. Appeal allowed - decided in favor of appellant.
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