TMI Blog2015 (9) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed for Basmati Rice in order to pass test – Therefore Court of opinion that Additional Commissioner was justified in his conclusion that Respondent had attempted to export non-Basmati Rice prohibited for export in terms of DGFT notification – Impugned order of Tribunal hereby set aside – Decided in favour of Revenue. - CUSAA No. 4/2013 - - - Dated:- 25-8-2015 - S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Mr Rahul Kaushik, Senior Standing Counsel For the Respondent : Mr Navneet Panwar, Adv ORDER 1. This appeal under Section 130 of the Customs Act, 1962 by the Commissioner of Customs is directed against the final order dated 12th June, 2012 passed by the Principal Bench of the Customs and Central Excise Service Tax Appellate Tribunal ('CESTAT') in Customs Appeal No.214/2012. By the impugned order, the CESTAT allowed the appeal of the Respondent and set aside the order dated 15th February, 2012 of the Commissioner of Customs (Appeals) affirming the Order-in-Original dated 21st October, 2011 of the Additional Commissioner of Customs. 2. The background of the present case is that the Respondent filed two shipping bills both dated 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Hence, neither these sample could be considered as samples of Basmati Rice (RUD No.3). As the Respondent was permitted only to export Basmati Parboiled in terms of the certificate issued in its favour, and since export of non- Basmati Rice was prohibited under the Export Policy in terms of Notification No. 55 (RE-2008) 2004-2009, a show cause notice was issued to the Respondent on 26th May, 2011 by the CoC. 6. Inter alia, in the said show cause notice a reference was made to the order passed by this Court in Writ Petition (Civil) 953/2011 on 1st March, 2011; to the reports sent by the RAL, Okhla, New Delhi; to the further query posed by the CoC to the RAL by the letter dated 15th March, 2011 and the reply thereto from the RAL Laboratory on 16th March, 2011 to the effect that the samples were not conforming to the Basmati Rice as they were having other rice more than 20% (maximum permitted under the rules) and do not possess the natural fragrance in both Raw and Cooked stages; that since the admixture exceeded the prescribed limit and in the absence of fragrance, neither sample could be considered be as a sample of Basmati Rice; and that since the exporter had tendered goods fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent cannot now raise the plea that the test report of the RAL cannot form a reliable basis for determining whether the consignment sought to be exported by the Respondent conformed to the standards prescribed by DGFT for Basmati Rice. The test reports of the RAL clearly stated that the percentage of other Rice in the consignment was more than 20% which was the maximum permitted under the Basmati Rules. The sample also did not possess the natural fragrance in both raw and cooked stages. It was pointed out that in the decision in Global Agro Impex (supra), the CESTAT observed that the counsel for the Revenue had been unable to point out any notification of the DGFT which prescribes that the AGMARK standards had to be applied to decide whether the goods were Basmati Rice or otherwise. The attention of the CESTAT was not drawn to the above DGFT circular dated 30th September, 2008. The DGFT circular has been enclosed with the present Memorandum of Appeal as Annexure-A6. 10. Learned counsel for the Appellant submitted that the decision of the CESTAT in Global Agro Impex (supra) is pending consideration before the Allahabad High Court in Appeal No. 797/2012. He relied on the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T notification dated 5th November 2008, export of non-Basmati Rice is prohibited. The third factor is that in terms of the policy circular dated 30th September, 2008 again issued by the DGFT the Customs Department was to allow the export of Basmati Rice and Pusa 1121 non-Basmati Rice based on the parameters of the grain length, and grain length to breadth ratio. This circular made it clear that Customs may draw, redeem samples for testing to ascertain variety identification and send these samples for analysis to Agmark Analyst Centres . While the notification dated 16th September, 2008 did prescribe that the standard to be met as far as Basmati rice meant for export was concerned was that the grain should be 7 mm in length and ratio of length to breadth of the grain shape should be more than 3.6, (which was later amended vide notification dated 17th August, 2010 to read more than 6.61mm of length and a length to breadth ratio of more than 3.5), the fact is that under the DGFT Circular dated 30th September, 2008 the samples were also to be sent for testing to the Agmark Laboratories. Combined with the fact that the notification dated 5th November, 2008 prohibited the export of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re than the permissible maximum limit of 20%. Since the consignment was not entirely of Basmati Rice, it was not sufficient that the grains confirmed to the length and length/breadth ratio prescribed for Basmati Rice in order to pass the test. 15. The contention of the Respondent that the show cause notice (SCN) did not mention the additional requirement of the maximum permissible limit of 'other rice' is not borne out from a reading of the SCN. It does clearly set out all the relevant facts. 16. For these reasons, the Court is of the opinion that the Additional Commissioner was justified in his conclusion that the Respondent had attempted to export non-Basmati Rice prohibited for export in terms of DGFT notification thereby inviting action under Section 113 (d) (i) of the Customs Act, 1962. 17. The impugned order dated 12th June, 2012 passed by the CESTAT is hereby set aside and the Order in Original dated 21st October, 2011 of the Additional Commissioner of Customs as affirmed by the Order dated 15th February, 2012 of the Commissioner of Customs (Appeals) is restored. 18. The appeal is allowed in the above terms but, in the circumstances, with no order as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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