9911796707
TMI Blog2014 (12) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... se is that M/s. Hak Agrofoods imported consignment of Fresh Frozen Green Peas vide bill of entry No. 698841 dated 29-9-2009. As per the Customs Authority the appellant required to obtain NOC from the Plant & Quarantine Authority in terms of Plant and Quarantine (Regulations) Order and PHO. The Plant and Quarantine department advised the Customs department vide letter dated 16-11-2009 to deport back to the supplies or destroy the goods as there is bio-security risk. In view of the observation of plant and quarantine authority, the goods were confiscated by the lower authority. The lower authority passed the order for confiscation of goods for violation of the Plant and Quarantine (Regulation) Order, 2003 read with Section 5 of the Foreign (D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal of the appellant despite holding stand that conclusion cannot be drawn before carrying out the test of the product, as per the interim order. He submits that despite the repeated request to the Customs authority, the test was not allowed. In this situation the Commissioner (Appeals) should not have rejected the appeal of the appellant only for the reason that test report did not produce by the appellant. He submits that product imported by the appellant is admittedly "Fresh Frozen Green Peas", it does not fall under the seed. For this product, in the EDI system, compulsory compliance requirement of production of import permit/Phytosanitary Certificate from Plant & Quarantine Authority/NOC from Local Food (Health) Authority/PHO. He submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carrying out the test under PRA, the charge made against appellant cannot be established. Since, after all the efforts by the appellant, Customs Department itself is not extended cooperation and not allowed the test of the product, the appellant should not be made sufferer in absence of any contradictory report. It is his submission that advise of the Plant and Quarantine Authority is general in respect of the product and without any test therefore, the same cannot be sole reason for denying the clearance of the goods. He submits that the appellant has submitted an opinion from Shri G.B. Waland, Professor (Plant Pathology) and Principal of International Agri-Business Management Institute, Anand Agricultural University, Anand Gujarat, wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d redemption fine and penalty should not have been imposed. 2. Shri. M.S. Reddy, Addl. Commissioner (AR) appearing for the Revenue reiterates the findings of the impugned order. 3. I have carefully considered the submissions made by both the sides and perused the record. 4. The product in the present case is Fresh Frozen Green Peas. In connection with the clearance of the said goods EDI system has asked in a EDI system printout for compulsory compliance requirement i.e. Phytosanitary Certificate. The appellant has produced the said certificate of Country of Origin i.e. Republic of China. Accordingly, whatever compulsory compliance was required, the appellant has made good. The Plant and Quarantine Authority though made gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to get the samples of the goods tested by the recognized lab. In the event of Test report indicating absence of pests etc. the assessing authority should consider the provisional clearance of goods subject to the final order. The appeal will be decided finally after the test report is by the applicant. From the above clear findings of the ld. Commissioner (Appeals), it could not have been drawn conclusion without test whether goods is free from pest. The appellant made repeated request to the Customs authority vide letters 21-12-2009, 22-12-2009 and 19-1-2009 for carrying out the test, Customs department has not given any heed to the request of the appellant. In such situation without test, the ld. Commissioner (Appeals) should not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I am of the view that the appellant has not contravened any of the provision of the Customs Act, 1962 and as per the nature of the product i.e. Frozen Green Peas, requirement of Phytosanitary Certificate was produced, which was the requirement under EDI system. Therefore the appellant cannot be held guilty. In view of my above discussions, I am of the view that since the final test as regard Pest Risk Analysis was not carried out, the reliance can be placed on other documents such as Phytosanitary Certificate, report of Public Health Department of Municipal Corporation of Greater Mumbai and also certificate of Quarantine given by the supplier by which it can be ascertained that the product in question is free from pest, insect and fungal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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