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2021 (1) TMI 118 - AT - CustomsAbsolute Confiscation - penalty - Skimmed Milk Powder - imports under Duty Free Import Authorisation - prohibited goods or not - non-production of BIS Certificate at the time of assessment - HELD THAT:- It is not disputed that the department did not ask for redemption fine and rather went for complete confiscation of the goods under the guise of prohibited goods, which is not correct as per discussions already made. The Hon’ble Supreme Court in the matter of COMMISSIONER OF CUSTOMS VERSUS M/S. ATUL AUTOMATIONS PVT. LTD., AND PARAG DOMESTIC APPLIANCES [2019 (1) TMI 1324 - SUPREME COURT] has specifically laid down that there exist a fundamental distinction between what is prohibited and what is restricted. In the present case also the absence of BIS certificate can’t made the skimmed milk power as prohibited goods and since the goods in question are not prohibited therefore its complete confiscation is not warranted - It is not disputed that the appellants/importer did not possess the required BIS certificate, but that itself would not make it prohibited goods. The authorities could have given opportunity to the appellants for its redemption. As the same was not offered to the appellants now they can’t ask for it, as no new case can be made at this stage. The goods in issue are not prohibited goods under the Customs Act, 1962 or under the provisions of Foreign Trade Policy and under any other law. Learned Counsel for the Appellant rightly submitted that if the department is so much concerned, then in the meantime it could have got the skimmed milk powder tested at the cost of the appellants in order to verify whether it meet the standards or not but nothing of the sort has been done. The learned counsel has specifically submitted that as per domestic laws the goods were sent to FSSAI for mandatory tests in terms of the provisions of The Food Safety and Standards Act, 2006. The FSSAI clearance was given by the authorities and it can very well be said that that the appellants have complied with the mandatory food safety standard under the Food safety standards Act, 2006 under the domestic law. The technical specification of the impugned goods clearly falls under the FSSAI regulation as per the direction issued under Section 16(8) of the Food Safety Standards Act, 2006 regarding operationalisation of amended regulation regarding revised standards for milk and milk products etc., which includes essential parameters such as Milk fat (%), Milk Protein, Titrable acidity, Total ash content etc. Undisputedly FSSAI standards and BIS standards are complementary to each other and are not contrary. The impugned goods in question are neither liable for confiscation nor for any penalty under the Customs Act - Appeal allowed - decided in favor of appellant.
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