TMI Blog2009 (12) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent. [Order]. - This appeal is directed against the order of Commissioner of Customs, Marmagoa absolutely confiscating the goods imported by the appellant. 2. Brief facts of the case are that the appellant sought clearance of imported Cosmetics described as "Shower Gel, Roll on, Shampoo/Conditioner Shampoo, Shaving Gel, Hair Cream, Body Cream and Scented Spray and filed Bill of Entry. The appellant sought assessment of the above said goods as cosmetics under Chapter 33 of the Customs Tariff Act, 1975. A show cause notice was issued stating that in terms of Rule 133 of Drugs and Cosmetics Rules, 1945, import of cosmetic is allowed only through the points of entry specified under Rule 43-A of Drugs and Cosmetics Rules. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly known as toiletries/cosmetics and they are not intended for medicinal use. Hence the goods are covered under Item 1 of Schedule D of Rule 132 of Drugs and Cosmetics Rules, 1945. He further submitted that the Commissioner has not followed principle of natural justice. He further submitted that the Commissioner also has not followed the Board's instructions as well as jurisdictional precedents. In the case of Union of India v. Kamalakshi Finance Corporation Ltd. - 1991 (55) E.L.T. 433 (S.C.) the Hon'ble Apex Court has laid down that orders of higher authorities are to be followed unreservedly by all lower authorities. The Hon'ble Apex Court in the case of Collector v. Dhiren Chemical Industries - 2002 (143) E.L.T. 19 (S.C.) has further c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that though the goods are liable for confiscation, the same can be released on payment of fine. In view of the above submissions, he submitted that the impugned order be set aside and appeal be allowed. 4. On the other hand the learned SDR appearing on behalf of the Revenue has submitted that in this case the brief question is that - (a) whether cosmetics can be imported via Goa Port as per the Drugs and Cosmetics Act and (b) whether the Customs can absolute confiscate the goods in case of violation of any provisions of Drugs and Cosmetics Act." He submitted that the substances not intended for medicinal use does not include cosmetics, the substance specifically used for drugs only. He further submitted that the exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 369A (Bom.) (b) Dr. Roshan Lal Aggarwal Sons Pvt. Ltd. v. C.C. ICD, New Delhi - 2008 (226) E.L.T. 624. (c) HS Chopra v. CC ACC, New Delhi - 2002 (149) E.L.T. 140 (Tri.-Del). (d) Bala Krishna Pillai v. CC, Cochin - 2003 (156) E.L.T. 414 (Tri.-Bang.) 5. Heard both sides. 6. In this case the main issue before me is that whether the appellant is entitled for exemption under Rule 132 of the Drug Cosmetic Rules, 1945. If yes, whether the goods can be imported through Goa Port? If no, whether the goods be treated as restricted goods/prohibited goods and can be released on redemption fine or not? To arrive at a conclusion, I have to go through the Rule 132 read with Schedule D of Drugs and cosmetics Rules, 1945, which is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming Sl. 1 of Class of Drugs of the Rule. As per Schedule D, Sl. 1 of Class of Drugs - substances not intended for medicinal use. These are exempted from provisions of Chapter III and Item falling under this Entry are exempt and read with schedule D, they may be freely import from any port in India. The items at Sl. 1 rules as substances are not intended for medicinal use. The learned Counsel submits that the word "substances" used in this entry is only a part of an article which is used in the definition of cosmetics under Drug Cosmetics Rules, 1945. Definition of Cosmetics is reproduced, below here as under :- Rule 3(aaa) "Cosmetics" means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Circular. The CBEC Circular No. 450/115/2003 - Cus. IV dated 3-3-2004 is with regard to provisional release of the goods. Further, letter from Deputy Commissioner, Tuticorin also clarifies that toiletries and cosmetics can be imported freely from the Tuticorin Port. The order issued by the Asst. Commissioner, Faridabad clarifying that the items in question can be imported as per the procedure as prescribed in Foreign Trade Policy, 2009-14 and the Customs Act, 1962. Plain reading of the word "substance" is that substance is part of an article. The cosmetic is also a substance and we have to read the language as a whole. Substance not intended for medicinal use and the item in question to be imported by the appellant are viz. Shower gel, Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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