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Hindustan Coca-Cola Beverages Pvt Ltd Versus Commissioner of Customs (Import) , Nhava Sheva

2015 (10) TMI 204 - CESTAT MUMBAI

Goods imported having less than 60% shelf life – Confiscation, imposition of redemption fines and penalty – FSS authorities had declined to issue NOC for import of goods on ground that imported goods did not have shelf life of 60% of original shelf life as required under provisions of FSS Act – Vide impugned order, appellate authority has upheld confiscation order of adjudicating authority wherein redemption fine was imposed on goods imported and penalty was imposed on appellant – Held that:- co .....

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ave been exported back, imposition of penalty under Section 112 is not warranted – Accordingly, penalty imposed is set aside – Also fine imposed upon appellant reduced – But for above modification, impugned order is sustained – Decided partly in favour of Assesse. - Appeal No. C/89390/14 - Dated:- 20-3-2015 - P R Chandrasekharan, Member (T),J. For the Appellant : Shri Vipin Jain, Adv. For the Respondent : Shri M K Mall, Asst. Comm. (AR) ORDER Per: P R Chandrasekharan: 1. The appeal arises from O .....

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appellant, M/s. Hindustan Coca-Cola Beverage Pvt. Ltd., under Section 112 (a) of the Customs Act, 1962. Aggrieved of the same, the appellant is before me. 2. The learned Counsel for the appellant submits that in the present case, the goods imported by the appellant were "Diet Coke Beverage Base" which was not for sale but was a raw material for making non-alcoholic beverages. Therefore, the product was not coming within the scope of Food Safety and Standards Act (FSS ACT) and therefore .....

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e appellant therein had not complied with the regulations. However, Hon'ble High Court noted that the said regulations would not apply to raw materials which are required for further manufacture in India. The ratio of the said decision would apply in the facts of the present case also and therefore, the confiscation and consequent penal proceedings were not warranted at all. The learned Counsel also points out that while the adjudicating authority has sought to confiscate the goods under Sec .....

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the appellant should not be penalised. Since it was noticed that the goods supplied were few weeks old and NOC was not given by the FSS authorities, they had taken up the matter with the foreign supplier vide letter dated 09/12/2013 and 10/01/2014 and the foreign supplier had agreed to take back the goods. In these circumstances, imposition of penalty or redemption fine on the goods is not warranted and should be set aside. He also relies on the decision of this Tribunal in the case of Guru Isp .....

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was not challenged by the appellant, they cannot take a plea that the goods are not offending or the appellant did not commit any mistake while undertaking the said imports. Inasmuch as in the declaration given the appellant had not indicated the shelf life, which was found to be less than the prescribed norms, there is a mis-declaration with respect to the material particulars attracting the provisions of Section 111 (m). Inasmuch as the goods are not permitted to be imported, the goods are als .....

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he records, it is seen that the FSS authorities had declined to issue NOC for the import of the goods on the ground that the imported goods did not have shelf life of 60% of the original shelf life as required under the provisions of FSS Act. Inasmuch as the appellant has not challenged this decision of the FSS authorities, the Customs cannot overlook or ignore the decision of the said authority. It is in this context, the issue has to be examined as to whether the goods are liable to confiscati .....

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confiscation under Section 111 (d). Thus, though there is a contradiction in the findings of the lower authorities, the confiscability of the goods is not in doubt. Inasmuch as confiscation is sustainable, the goods being offending in nature, is liable to imposition of fine under Section 125 and the importer liable to penalty under Section 112. However, the mitigating factor in the present case is that the appellant had in their purchase order specifically requested for fresh production so that .....

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