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TMI Blog2010 (6) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... e, nor any request of theirs for adjournment. This happened on the previous occasions also. We are, therefore, inclined to dispose of this case finally after hearing the learned SDR. 2. In the aforesaid Bill of Entry, the respondent had claimed exemption from payment of special additional duty under Notification No 22/99-Cus dated 28-2-1999 (serial No.5). The entry at serial No. 5 in the table annexed to the notification reads as under : "S. No. Description of goods Rate of Special additional duty (1) (2) (3) 5. All goods falling under the said First Schedule, which are imported for sale as such, other than by way of high seas sale and the importer at the time of importation or at the time of clearances of warehoused goods for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Drugs and Cosmetics Rules and hence should be considered to be misbranded and to be prohibited for import and consequently to be liable for confiscation. This report was made with reference to Section 9C of the Drugs and Cosmetics Act, 1940 read with Sections 13 and 14 of the same Act as also to the relevant Sections of the Customs Act. However, in a subsequent report sent by the ADC, it was stated thus : "The matter was examined on the basis of representation made by the importer. The importers have now produced all the relevant documents from the manufacturer. Importers have also agreed to carton soap as required under Drugs & Cosmetic Rules. Since the item is not meant for sale but for free distribution to the industries, earlier r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act. The importer appeared to be liable to penal action under Section 112 of the Customs Act. On this basis, a show-cause notice was issued to the respondent for confiscation of the goods, imposition of penalty on the importer and denial of the benefit of the notification to them. These proposals were contested. The jurisdictional Jt. Commissioner of Customs, in adjudication of the dispute, ordered confiscation of the goods under Section 111(d) of the Customs Act read with the relevant provisions of the Drugs and Cosmetics Act, 1940 and the Trade and Merchandise Marks Act, 1958 and Section 11 of the Customs Act. However, the goods were allowed to be redeemed on payment of a fine of Rs. 1 lakh for the purpose of re-export. A penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suant to the ADC's advice was also objectionable inasmuch as the brandname used on the containers was deceptively similar to the brand name "Lux" of M/s. Hindustan Lever Ltd., which amounted to breach of the relevant provisions of the Trade and Merchandise Marks Act, yet another reason for the confiscation of the goods under Section 111(d) of the Customs Act read with Section 11 of the same Act. The learned SDR has reiterated these grounds of the Revenue's appeal. 5. On going through the records, we note that, when the original authority passed the order of adjudication in this case, the respondent's application for registration of the brandname 'Hilux' in favour of M/s. AJ Traders was pending before the competent authority under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded" for purposes of Section 10 of the Act. In another words, the goods were prohibited for import. We are of the view that the original authority took the correct stand with regard to the status of the imported goods with reference to the provisions of the Drugs and Cosmetics Act. Commendably, it did so independently without reference to the second report given by the Assistant Drugs Controller. Prohibited goods imported by a person are per se hit by Section 111(d) of the Customs Act and, therefore, the order of confiscation cannot be faulted. 6. The original authority determined the fine of Rs. 1 lakh to be paid by the importer for redeeming the goods for re-export within a period of three months. It appears from its order that the good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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