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2017 (2) TMI 295 - MADRAS HIGH COURT

2017 (2) TMI 295 - MADRAS HIGH COURT - TMI - Import of cosmetics - Loomy Tunes Room Air Fresheners - misdeclaration - jurisdiction - power of Competent Authority to pass discretionary order. - Held that: - no cosmetic, shall be imported into India unless that product is registered under the rules by the licensing authority. Rule 129A dealt with the Form and manner of application for Registration Certificate for importing cosmetics referred to above. Such application shall be made for Regist .....

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- The goods which are liable to be imported subject to fulfillment of certain conditions, when so imported without fulfilling or satisfying such conditions amount to importing prohibited goods in terms of Section 11 read with Section 125 of the Act. Therefore, we find no merit in the contention canvassed that such of those clandestinely imported cosmetics and toiletries goods should also be permitted to be redeemed by the Commissioner of Customs and failure to do so vitiates the order is wit .....

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l equities calling for such an exercise. - Appeal dismissed - decided against appellant. - Writ Appeal Nos. 821 and 822 of 2016 - Dated:- 31-1-2017 - Nooty Ramamohana Rao And Anita Sumanth, JJ. For the Appellant : Mr.Vijay Narayanan, Sr. Counsel, for Mr.N.Viswanathan For the Respondents : Mrs. Hemalatha, Standing Counsel JUDGMENT ( Delivered by Nooty Ramamohana Rao, J ) Both these Writ Appeals are preferred under Clause 15 of the Letters Patent, calling in question the correctness of the com .....

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the goods covered under the Bill of Entry No.3611465 dated 22.10.2013. Whereas Writ Appeal No.822 of 2016 arises out of W.P.No.30790 of 2016, which in turn is directed against the order passed on 09.09.2015 by the Additional Commissioner of Customs (Gr.2), Customs House, Chennai, with a direction to provisionally release the goods covered by the Bill of Entry No.3611465 dated 22.10.2013. 3. Since the issue raised in both the writ petitions arise out of the same Bill of Entry and also the same s .....

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tary concern had been granted the Import-Export Code bearing No.0412028522. It is the further case that the said proprietary concern has executed necessary power of attorney in favour of Shri L.Ibrahim, son of Shri Liaquath Ali, to conduct the affairs of the said firm. It is the case of the writ petitioner that after due negotiations the overseas supplier was requested to supply 2070 cartons of 'Loomy Tunes Room Air Fresheners' for a total value of USD 10350 and accordingly, the overseas .....

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petitioner, has paid this amount of Duty. 6. Thereupon, instead of clearing the goods, the Customs Department has taken up the Bill of Entry for second check appraisement and examination. During the said course, certain difference in the weight of the consignment was noticed and accordingly the cargo was detained on 28.10.2013. Necessary entry is made in the discrepancy register. On 06.11.2013, a communication was lodged by the writ petitioner with the Customs House that due to an inadvertent mi .....

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. The Intelligence Wing of the Customs House has examined the goods on 11.11.2013 and drawn a detailed mahazar proceedings for ascertaining the true quantity and description of goods found imported and lying in the container. After drawing the detailed mahazar on 12.11.2013, the container was sealed using one time Customs Seal bearing No.UCWN16194. On 18.11.2013 necessary permission was accorded to the writ petitioner for bonding the goods under Section 49 of the Customs Act. The Customs Authori .....

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w cause notice under Section 124 of the Act, by a further period of six months, in the process, reckoning the date of seizure of the consignment as 03.12.2013. Time was granted up to 28.05.2014 for filing the objections. Accordingly, objections were lodged on 27.05.2014 pointing out that no show cause notice having emanated within a period of six months reckoned from the date of detaining the goods on 28.10.2013 or even 11.11.2013, the goods are liable to be released unconditionally. The petitio .....

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se notice dated 20.05.2014, proposing to extend the time to draw the 'show cause notice for adjudication' by a further period of six months. The Commissioner of Customs has also passed orders on 02.06.2014, extending the time for issuance of show cause notice for adjudication, till 03.12.2014. It is this order dated 02.06.2014, which is challenged in W.P.No.30789 of 2015. The entire case of the petitioner in this writ petition revolves around the fact that the consignment having been det .....

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Calcutta High Court, to which we would advert to in detail a little later on. 10. A show cause notice dated 02.12.2014, under Section 124 of the Act, came to be issued as to why the value declared as well as the value mentioned in the revised invoice dated 29.10.2013, should not be rejected and the value of the goods imported be not redetermined at ₹ 1,00,04,680/- in terms of Rule 9 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, based upon the market enqu .....

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ommissioner of Customs finalized the proceedings and passed a detailed order on 09.09.2015 confirming the proposals contained in the show cause notice. In that view of the matter, W.P.No.30790 of 2015 is instituted challenging the legality and validity of the order dated 09.09.2015. 12. As already noticed supra, both these writ petitions came to be dismissed by the common order rendered by our learned brother M.Duraiswamy,J on the ground that the Appellate remedy available under Section 128 of t .....

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ute bar for grant of a writ when patent illegality was committed. Since the said proposition of law was laid down by the Supreme Court in the State of Uttar Pradesh V. Mohammed Nooh (AIR 1958 SC 86), A.V.Venkateswaran, Collector of Customs, Bombay V. Ramachand Sobharaj Wadhwani (AIR 1961 SC 1506), Calcutta Discount Co. Ltd., V. Income Tax Officer (AIR 1961 SC 372) and Whirlpool Corporation V. Registrar of Trade Marks (1998 (8) SCC 1) we, proceeded to hear and consider the matter on merits. 15. S .....

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d. Thus, the writ petitioner/appellant has been successfully and effectively prevented from gaining access, control and or possession of the goods imported in spite of payment of necessary Duty thereon. Therefore, the 'act of detention of goods' by the customs amounts to seizure of the goods. When once the goods are seized and if no show cause notice was drawn within a period of six months thereafter, such goods become liable to be released unconditionally. In spite of making such a spec .....

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this regard upon the Judgment rendered by the Calcutta High Court in ESI Limited vs. Union of India 2003 (156) ELT 344. 16. Before we deal with these submissions it would be appropriate to notice various provisions of the Customs Act, 1962, which was enacted with a view to consolidate and amend the law relating to Customs as the experience has shown that the provisions of Sea Customs Act, though were substantially amended by the Sea Customs (Amendment Act) 1955 could not effectively provide for .....

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, re-assessment and any order of assessment in which the duty assessed is nil;" Clause (4) defines "Bill of Entry" as bill of entry means a bill of entry referred to in section 46;" and Customs area in Clause (11) as customs area means the area of a customs station and includes any area in which imported goods or export goods are ordinarily kept before clearance by Customs Authorities;", "Entry" in Clause (16) as entry in relation to goods means an entry made i .....

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any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer;". Under Section 11 of the Act power is conferred upon the Central Government which may by Notification in the Official Gazette prohibit either absolutely or subject to such conditions to be fulfilled before or after clearance as may be specified in the Notification, the import or export of goods of any specified de .....

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t the self assessment is not done correctly but re-assess the Duty leviable on such goods without prejudice to any other action which may be taken under the Act. Sub-section (5) enables the proper Officer to pass a speaking order of reassessment within 15 days from the date of reassessment of the Bill of Entry. Where reassessment has not been done or a speaking order has not been passed, the proper Officer may audit the assessment of the Duty of the imported goods. Section 18 provides for revisi .....

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ved by the Commissioner of Customs until they are cleared for home consumption or are warehoused or are transshipped in accordance with the provisions of Chapter VIII. (2) The person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force, (a) shall keep a record of such goods and send a copy thereof to the proper officer; (b) shall not permit such goods to be removed from the customs area or otherwise d .....

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er under section 30 for the arrival of the conveyance in which the said goods were carried." 18. It is, thus, abundantly clear from Section 45 of the Act that all imported goods, unloaded in a Customs area, shall remain in the custody of such person as may be approved by the Commissioner of Customs until they are cleared for home consumption or warehoused or transshipped in accordance with the provisions of Chapter VIII. Sub-section (2) thereof further makes it clear that the person having .....

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he Customs Area or allow to deal with the same otherwise by any third parties. Section 46 obliges the importer of goods, other than goods intended for transit or transshipment, to make an entry thereof by presenting electronically to the proper Officer a Bill of Entry for home consumption or warehousing in a prescribed form. Sub-section (2) thereof further mandates that the Bill of Entry shall include all the goods mentioned in the Bill of Lading or other receipt given by the carrier to the cons .....

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as paid the import Duty, if any leviable thereon may make an order permitting clearance of the goods for home consumption. Sub-section (1) of Section 47 also, thus allows examination/inspection of the goods for being satisfied that the goods imported are not prohibited under the Act or by any other law. Payment of Import Duty is an incidence to be taken note of by the Proper Officer, when all other conditions relevant to import are complied with/satisfied, for purposes of passing an order cleari .....

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till they are cleared by the 'Proper Officer' under Section 47, is recognized as absolute. Thus the authorities of the Customs have every right to exercise full power and control over the imported goods under Section 45 of the Act, till such time they are properly cleared. 19. Section 110 of the Act has provided for seizure of goods, documents and other things. It has set out that if the Proper Officer has reason to believe that any goods are liable to confiscation under the Act, he may .....

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shall be returned to the person from whose possession they were seized: Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Commissioner of Customs for a period not exceeding six months." The above provision makes it clear that if no notice under Section 124 of the Act is issued within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were thus seized. The computation of six mont .....

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detention need not necessarily lead to any such inevitable result. (See. Gian Chand V. State of Punjab 1983 (13) ELT 1365 SC.) 20. It is also to be noticed that under the proviso to sub-section (2), the Commissioner of Customs has been empowered to extend the aforesaid period of six months if there is sufficient cause shown for not issuing the show cause notice under Section 124. 21. Learned Senior Counsel placing reliance upon sub-section (2) of Section 110, has contended that the goods have b .....

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22.10.2013. Whereas Goods are detained on 28.10.2013 and the revised Bill of Entry was lodged on the next date i.e. on 29.10.2013 and on 11.11.2013, at 14.30 hours examination proceedings of the consignment was carried out. The examination details have been recorded in a tabulated form in the report drawn on 12.11.2013. After de-stuffing the Carton Boxes, the examination revealed that a total number of 3470 cartons covering a total number of 17 different items of goods were found imported in th .....

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ere stuffed back into the same container and the said container was sealed with the Customs One Time Seal No.UCN16194......." From the above statement, the learned Senior Counsel would draw an inference that the importer has been effectively denied access to the imported goods and their usage and hence such act of the Customs Inspector in sealing the container would amount to seizure of the imported goods. Any such denial of control and usage of the imported goods would amount to seizure of .....

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hazar has been prepared in the presence of two witnesses and the importer and his authorized person. It is noted therein that the Customs Officers verified the Customs Seal on the container which were found intact and thereafter only the Customs Seal UCWN 16194 was cut open and the container was de-stuffed. The carton boxes were found serially numbered as mentioned in the mahazar drawn on 12.11.2013. It was also recorded that Shri Mahesh Kumar Singh and Shri C.S.Ibrahim have vouched that the goo .....

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& seizure effected by me". Thus the seizure of the imported goods in the instant case has been effected only on 03.12.2013 at 15 hours. What was really undertaken on 11.11.2013 and 12.11.2013 is mere examination of the imported goods and inventorisation of the entire goods imported, by de-stuffing of the cartons contained in the container, to verify that they tally exactly with the disclosure made in the Bill of Entry. 24. We are clearly of the opinion that the examination and inventori .....

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Therefore, what has been undertaken on 11.11.2013 and 12.11.2013 is nothing but examination of the imported goods and their inventoriesation. It is thereafter, the container has been re-stuffed back with all the cartons containing the imported goods. The container cannot be left open and unattended to and hence the container was sealed using a Customs One Time Seal. It is therefore, a case of sealing the container with a view to preserve the integrity of the imported goods contained in various .....

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thorities of the Customs, the container has been sealed using the One Time Seal of the Customs on 12.11.2013. Whereas actual seizure of the goods has taken place only on 03.12.2013, based upon the factual finding that an attempt has been made to smuggle certain goods. The fundamental requirements for effecting seizure of goods is the reason to believe that the goods are liable to be confiscated under the Act. Hence, only upon there being a reason to believe that the goods are liable to be confis .....

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se for consideration as to whether the goods are liable to be confiscated or not. Under Clause (i) of Section 111, goods found concealed in any manner in any package either before or after unloading are liable for confiscation. Unless the goods become liable for confiscation, they cannot be seized. Hence, the exercise carried on on 11th and 12th November, 2013 is only an ascertainment exercise as to whether the goods imported tally with the details found mentioned in the import manifest delivere .....

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er of Customs has drawn a show cause notice under the provisio to sub-section (2) of Section 110 of the Act, on 02.06.2014, proposing to extend the period for issuance of show cause notice under Section 124 of the Act, by another six months, i.e., up to 03.12.2014 in respect of the seized goods under mahazar drawn on 03.12.2013. In our opinion, this order passed by the Commissioner of Customs on 02.06.2014 is in accordance with the provisions contained under sub-section (2) of Section 110 of the .....

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e importer has been denied effective control over the goods and hence the same amounts to seizure of the goods itself, is inspired by the reasons contained in the judgment rendered by the Division Bench of Calcutta High Court, in E.S.I. Ltd. vs Union Of India (Uoi) (2003 (158) E.L.T. 344 (Cal.), which is to the following effect:- 7. Appearing in support of the appeal, Mr. Ajit Kumar Panja submitted that the decision of the learned Single Judge was based on an erroneous finding that the detention .....

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sion of the concerned officer, in the instant case the dominion over the goods went out of the hands of the appellants as soon as on 22nd November, 2000, the rooms in which the detained and/or seized goods were kept were sealed by the Customs Officers (P), Varanasi Division. Mr. Panja submitted that the fact relating to the sealing of the rooms by the said Customs authorities would be evident from the Supurdnama executed by the person in whose custody, the said goods were kept and which has been .....

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ell for consideration. Mr. Panja submitted that, as in the instant case, in the said case also, the goods in question were sealed by the Customs authorities. In such context, the court observed that if the goods were sealed with the seal of the Assistant Collector of Customs, such an overt act of sealing the packed and re-packed drums amount to exercise of dominion over the goods. In other words, it is an act of seizure of the goods within the meaning of Section 110(1) of the Customs Act, 1962 a .....

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e Hindustan Motors case (supra). Once the dominion over the goods passed out of the hands of the appellant-company it tantamounted to seizure for all practical purposes. It is one thing for the goods to be kept detained in a manner where the owner thereof has access to the same but is prevented by a prohibitory order from dealing with the same. The situation is radically altered when the owner of the goods no longer has access thereto and has no control over the same. 28. It will be appropriate .....

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VIII of the Act. Similarly, under sub-section (2) of Section 17 of the Act, the Proper Officer is empowered to verify the self-assessment of the imported goods and for that purpose examine or test any imported goods as may be necessary. It is thereafter, the Proper Officer may reassess the duty leviable on such goods if he is satisfied that the self assessment made by the importer is not correctly done. 29. Therefore, the examination of the imported goods undertaken on 11.11.2013 and completed o .....

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en entrusted was required not to permit such goods to be removed from the Customs area or otherwise deal with them except and in accordance with the permission obtained in writing from the Proper Officer, it becomes clear that the goods imported shall continue to remain in control and custody of the Customs Officer and they remain to be so till they are cleared. Any such retention of custody of the goods and their control does not, in law, amount to passing of dominion over the same from the own .....

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clearing the goods has been passed in the present case. Consequently, the access or control or right of usage of the imported goods is not available at all to the importer, except under an express permission granted by the Proper Officer and no such permission has been granted either. Therefore, the contention canvassed by the learned Senior Counsel on behalf of the writ petitioner/appellant that the denial of access, control or usage of the imported goods amounts to seizure is not liable to be .....

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31. Once the goods get cleared for home consumption, the importer is entitled to remove the same from the Customs area subject of course to payment of duty. It would be a different matter that such goods are still liable for reassessment or even confiscation proceedings subsequently. But in such a case, if the person from whose custody the goods have been seized, if he is not issued with the show cause notice under Section 124 of the Act within the period of six months prescribed by sub-section .....

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er of Customs, confiscating the cosmetics which have been imported unauthorizedly, which are valued at more than one Crore of rupees. Even those Air fresheners/ goods which are imported as per import manifest are also ordered to be confiscated both under Clause (m) of Section 111 and Section 119 of the Act. However, an option has been provided to redeem the said goods (Air Fresheners) on payment of redemption fine of ₹ 1,50,000/- under Section 125 of the Act. A penalty of ₹ 25,00,000 .....

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for confiscation. The finding of fact recorded by the Commissioner of Customs in the course of his order, is that the cosmetic items which have not been disclosed in the import manifest delivered to the Customs, were found concealed behind the Cartons containing the declared goods (air fresheners). He therefore, observed that it negates the importers augment that the shipper had sent these cosmetics without their knowledge and that the mistake was unintended. The subsequent filing of revised in .....

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such conclusion, for us to interfere. Realizing these difficulties and also the fact that the Order in Original is an appealable one under Section 128 of the Act, which appeal has not been preferred and thus the facility of getting such erroneous findings of fact, if any, corrected not having been utilized, the learned Senior Counsel Shri Vijay Narayanan has mainly concentrated on the absence of not providing to the importer an option of payment of redemption fine in lieu of confiscation of the .....

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ds as under:- 125. Option to pay fine in lieu of confiscation. (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods 1[or, where such owner is not known, the person from whose possession or custody such goods have been seized,] an option .....

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uty and charges payable in respect of such goods. The Legislature has clearly used two different expressions may and shall in sub-section (1) thereof, to take care of two different events. 34. As is commonly understood, the expression may clearly indicates vesting of discretion while the expression shall has the ring of the mandate to do a particular thing provided thereunder. The first part of sub-section (1) of Section 125 clearly dealt with the situation arising out of confiscation of goods, .....

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In such a case, the option for payment of redemption fine has to be necessarily extended by the adjudicating officer. It is only appropriate to remind that the adjudication process under both Sections 124 and 111 is only in relation to the goods, the object of the Customs Act primarily being to ensure that there is no illegal importation of goods. The expressions prohibited under this Act or under any other law for the time being in force , found mentioned in Section 125 encompass not only the .....

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as may be specified in the notification, the import or export of goods of any specified description. The provision contained in Section 125 has therefore, got to be read conjointly along with Section 11 of the Act and when so read the prohibition of import which was contemplated by Section 125 clearly encompasses both such types of goods which are prohibited absolutely and also such goods which are prohibited or restricted or regulated subject to such conditions to be fulfilled either before or .....

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under sub-section (2) of Section 3 of the said Act, the Central Government may also, by Order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the import or export of goods. Under Section 5 of the said Act, the Central Government was also empowered to formulate and announce by notification in the Official Gazette, the & .....

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ter Code Number granted by the Director General or the officers authorized by the Director General in that behalf, in accordance with the procedure specified. There is no denying the fact such an Import Code Number was obtained in the present case. Under Section 11(1) of the said Act, no export or import shall be made by any person except in accordance with the provisions of this Act, the rules and orders made thereunder and the export and import policy for the time being in force. Under sub-sec .....

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, if any import is made, such goods are liable to be confiscated. 36. In the light of the above provisions, it is appropriate to notice the Foreign Trade Policy (FTP) also, announced for the period between 27th August 2009 and 31st March 2014. Chapter-2 thereof contained General Provisions Regarding Imports and Exports. In para 2.1 (a) it is made clear that Exports and Imports shall be 'Free', except when regulated as per FTP or ITC (HS). Sub-paragraph (b) thereof sets out that ITC (HS) .....

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ential Oils and Resinoids, Perfumery, Cosmetic or Toilet Preparations. At the very outset, in the notes appended thereto, it is made clear that this Chapter does not cover soaps or other products of heading 3401. The expression perfumery, cosmetic or toilet preparations in Heading 3307 applies interalia to the products which are listed therein. The goods (products) with which we are concerned in this case have not been demonstrated to fall within this Chapter 33. 37. It also takes us to the noti .....

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ic products imported into the country.- No cosmetic shall be imported into India unless the product is registered under the rules by the licensing authority appointed by the Central Government under rule 21 or by any person to whom such powers may be delegated under rule 22. Thus, no cosmetic, shall be imported into India unless that product is registered under the rules by the licensing authority. Rule 129A dealt with the Form and manner of application for Registration Certificate for importing .....

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tificate in Form 43 has been obtained by or on behalf of the importer. Under Rule 129(D), the Registration Certificate so issued shall be valid for a period of three years from the date of its issue unless it is sooner suspended or cancelled. Under Rule 129(G), no cosmetic shall be imported unless it complies with the specifications prescribed under Schedule S and Schedule Q or any other standards of quality and safety applicable to it and other provisions under the rules. Under Rule 129(H), no .....

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. Thus, every importer of cosmetics was required to comply with the above regulatory regime prescribed by the Drugs and Cosmetics (4th Amendment) Rule, 2010. The finding of fact recorded by the adjudicating Commissioner of Customs in the present case, is that this legal regime has not been complied with by the importer. 38. The necessary implication is that the restricted/ regulated prohibition of importation contemplated and provided for by Section 11 of the Customs Act, has not been complied w .....

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adjudicating authority, but any such restriction or regulation can only be dealt with by some other agency such as for example the Director General of Foreign Trade or the competent authority under the Drugs and Cosmetics Act, there is no way that the adjudicating authority under Section 125 of the Act can effectively waive or condone such restrictions /regulatory regime and then provide for an option for payment of redemption fine. We are therefore, of the opinion that the discretion has been p .....

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