9911796707
TMI Blog2011 (2) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 112(a) of the Act. The appellant had not produced any specific import licence when they filed the Bill of Entry dated 28-10-1998 for clearing the consignment of garlic declared as 'dried garlic'. In other words, they sought clearance under OGL. The goods were of Pakistani origin. The customs authorities suspected the correctness of the above declaration and insisted on specific import licence for clearance of the goods on the premise that the garlic was not dried garlic (freely importable) but fresh garlic with high moisture content (which required specific licence for importation). However, the consignment was provisionally released against a bond coupled with bank guarantee for Rs. 26,37,665/-. Subsequently, the case was taken up by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that a laboratory test of a sample of the consignment to ascertain its water content was necessary for determining whether it was dried or fresh garlic. Without such test, it was not open to the Revenue to reject the declared description of the goods. As per the declared description, the item was dried garlic which was freely importable and hence not liable to confiscation under Section 111(d) of the Act. On the other hand, the learned SDR submits that the adjudicating authority itself inspected a sample of the garlic and found to its satisfaction that it contained "sufficient water" for holding the goods to be fresh garlic. The learned SDR has also referred to the relevant HSN Explanatory Notes, which stated thus : "This heading (07.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-9-1999. The garlic was imported from Pakistan and was declared to be dried garlic for the purpose of clearance under OGL. Fresh garlic was not freely importable unlike dried garlic. The department, however, did not choose to get any sample tested for its moisture content. The Commissioner's order holding the goods liable for confiscation under Section 111(d) of the Act is on a theoretical basis rather than on the basis of actual moisture content. This Tribunal has consistently held that garlic containing moisture more than 10% by weight has to be treated as fresh garlic and garlic with moisture content up to 10% by weight should be regarded as dried garlic for ITC (HS) purposes. In the case cited by the learned SDR also, test results were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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