Home Case Index All Cases Customs Customs + AT Customs - 2024 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (3) TMI 1185 - CESTAT KOLKATALevy of penalty under Section 114A of the Customs Act and under Section 112A and Section 114AA of the Customs Act, 1962 - nature of imported goods as Dried Garlic or not - contravention of various provisions of the Customs statute as well as the provisions of Destructive Insects and Pests Act, 1914, PFS Order, 1989 and Plant Quarantine (Regulation of Import Into India) Order 2003 - HELD THAT:- There is no mis-declaration on the part of the appellant and if at all there was any breach it was a technical breach of importing the goods through LCS not listed in Schedule 1 of the Plant Quarantine (Regulation of Import into India) Order 2003. However, it is found that the department has never objected on this score. The department of its own freewill and accord has not drawn any samples of the goods imported in these different consignments. However, it is a fact that all these imports were part of a single contract and a single letter of credit executed with the exporter of the country of origin. Be as it may, the department only at the time of last imports (out of six) chose to have the matter examined by the Plant Quarantine Authorities, which report undisputedly was not in contravention or violation of the statutory provisions - the test report has emanated almost after a gap of five months and has therefore chosen to disregard the findings under the presumption “I therefore hold that a Garlic Bulb can become dry during this period”. The delay in such test reporting certainly cannot be attributed to any omission or commission of delinquency on the part of the appellant. All these evidences have been simply ignored without even a thought. Furthermore, a ‘Bulb’ is understood in local parlance as a short stem with fresh leaves or leaf bases that function as food storage organs during dormancy. It is very well known that Garlic, an agricultural produce, occurs as a bulb. Upon drying it loses moisture content to a large extent, but retains its shape as a bulb. Therefore, the mention of the term “Garlic Bulb” cannot be considered as determinative of the fact of it being dry or not. For which, if at all it was imperative for the department to get the water contents verified as they sought to dispute the classification declared and re-classified the product under heading 7032000. For this failure on the part of the department the assessee/importer/appellant cannot in any way be held responsible. As for this eligibility to exemption Notification seeking concessional rate of duty for import of the impugned goods from the People’s Republic of Bangladesh, it is found that the dispute on this score is completely arbitrary and baseless. It has nowhere been disputed that the goods did not originate and have been imported from Bangladesh. The importer has submitted necessary Government certification as referred above in support of his contention. The impugned goods are squarely covered in terms of Notification No.99/2011 dated 09.11.2011 and therefore exemption from payment of duty is admissible to the appellants in terms of the said Notification. Thus, no case can be made out for imposition of any of the penalties on the appellant - the order of the lower authorities is therefore liable to be set aside - appeal allowed.
|