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TMI Blog2015 (11) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to the import of Boric Acid either for its eligibility under the DFIA or use for non-insecticidal purpose. 2. The entire dispute is with regard to ITC (HS) classification No. 28100020 which indicates that the import of Boric Acid is subject to an import permit issued by the Central Insecticide Board & Registration Committee under the Ministry of Agriculture, constituted under the Insecticides Act, 1968. The department's case in the adjudication order dated 29.9.2014 is that without production of import permit, import of Boric Acid cannot be allowed as per clause 7 of DGFT Notification No. 2 (RE-2006)/2004-2009 dated 07.04.2006. Reliance was also placed by the adjudicating authority upon order dated 3.6.2014 of the Division Bench of Kerala High Court in the matter of Union of India Vs. Maliakkal Industrial Enterprise in Writ Appeal no. 617 of 2012. Also order dated 29.7.2009 passed by the Hon'ble Kolkata High Court in Writ Petition No. 505 of 2009 filed by Subhas Chandra Agarwal, and another wherein it was held that import permit is required for the import of Boric Acid as per DGFT Notification No. 2 dated 7.4.2006. An appeal filed by the present appellant against the Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cticide Board and Registration Committee (CIB & RC). While deciding so the CESTAT also relied upon the decision of the learned single judge of Hon'ble Kerla High Court in the case of M/s Maliakkal Industrial Enterprises, which held that the notification No. 2(RE-2006)/2004-2009 dated 07.04.2006 issued by the DGFT is without the authority of law. 3.5 Against the above background the show-cause notice dated 17.09.2014 was issued to the appellant proposing confiscation of the live consignment (Bill of Entry dated 02.08.2014) and imposition of penalty. 3.6 The learned Additional Commissioner, vide his Order-in-Original No. 165/2014 dated 29.09.2014 rejected the claim of the appellant to allow the clearance of the consignment without production of the Import Permit as stipulated in the DGFTs Notification No. 2(RE-2006)/2004-2009 dated 07.04.2006. Consequently the consignment was confiscated, with an option to pay the redemption fine of Rs. 17,00,000/-, alongwith production of the import permit (issued by CIB&RC). A penalty of Rs. 14,00,000/- was also imposed on the appellant under Section 112(a) of the Customs Act, 1962 (Act for short). 3.7 On appeal, the learned Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of boric acid for non-insecticidal use against the import permit issued by CIB&RC, this requirement is waived when the export is against the DFIA. 3.11 It is further pointed out that the DFIA has been issued to allow duty free import among others of boric acid for non-insecticidal use. It is further pointed out that by virtue of the application of the provisions contained in para 4.1.13(d) of the Policy, other licensing formalities by way of restriction through the FTP stand waived. It is further contended that the provisions of Insecticide Act have no jurisdiction to place restrictions on import of any item for non insecticidal use. It is further evident that the restriction placed on the import of boric acid for non insecticidal purposes is a restriction arising through the Policy and not through the Insecticide Act. Otherwise there was no legal necessity for the Central Government to notify the restriction in exercise of its power under Section 5 of the Foreign Trade (Development & Regulation) Act, 1992. 3.12 It is further urged that the learned Commissioner (Appeals) is in error in holding that the import licence for restricted goods and import permit from the CIB&RC are i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that the goods are restricted for import, does not authorize for confiscation. 3.15 It is further urged that even assuming for argument sake that there is violation of FTP consequent to failure to comply with the mandate contained in the notification dated 7.4.2006, it amounts to only violation of a restriction and is not a violation of any prohibition, and hence the provisions of Section 111(d) are not applicable and accordingly, the impugned order of confiscation and penalty is fit to be set aside. It is further urged that in the case of Sheikh Mohd. Omer (supra) before the Apex Court, was related to a situation when the words in a statute are ambiguous and require to be interpreted. However, in the facts of the present case, there is no ambiguity and as such the ruling of the Apex Court in Sheikh Mohd. Omer case is not applicable. 3.16 It is further urged that Board Circular No. 401/101/2011/Cus-III dated 22.6.2011 regarding import of substances listed in Insecticide Act, for non-insecticidal use Exemption from registration & import permit from CIB&RC clarified that the clearance of imported items listed in Insecticide Act for non-insecticidal use would not be subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FTP issued by the Central Government, the Honble Courts were satisfied that permit would still be required for the clearance under DFIA. The judgments relied upon by Revenue are thus not applicable in the facts of the present case involving imports under DFIA. Since there is no violation, the judgment of the Honble Supreme Court in Sheikh Mohd. Omer (supra) has no application in the present case. 7. Having considered the rival contentions, I hold, neither the goods, Boric acid, imported for non-insecticidal use under a specific DFIA license issued by DGFT are liable to confiscation, nor is any fine or penalty imposable under the Customs Act, 1962. The Ruling of the Division Bench of Hon'ble Kerla High Court in writ Appeal No. 617/2012 dated 03.06.2014, is held disguisable, as the matter before the Hon'ble High Court was with respect to import of boric acid on payment of duty, whereas in the present case, the import is against DFIA. Thus, the impugned order is set aside. 8. Thus, the appeal is allowed with consequential reliefs. The customs authority is directed to release the goods to the appellant forthwith, imported under Bill of Entry No. 6321863 dated 02.08.2014, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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