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TMI Blog2017 (12) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The petitioner is before this Court challenging an order passed by the second respondent, the Commissioner of Customs (Appeals-II) dated 25.09.2017. 3. The learned Senior Panel Counsel would submit that the petitioner has remedy of appeal as against the impugned order before the CESTAT and the writ petition is liable to be dismissed as not maintainable. 4. The learned Senior Counsel for the petitioner submits that in this writ petition the petitioner seeks for direction to permit them to re-export the cargo and the CESTAT does not exercise jurisdiction to pass interim orders for permitting re-export of the cargo imported by the petitioner and hence the writ petition is maintainable. 5. Considering the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1962, and impose penalty. The petitioner submitted their objections. The first respondent, by order, dated 12.09.2017, which is after more than one year after the Bill of Entry was filed, rejected the reply/objections given by the petitioner, and ordered absolute confiscation of the goods and imposed penalty of Rs. 50,00,000/-and rejected the claim for re-export. As against which, the petitioner preferred an Appeal to the second respondent. The second respondent, while granting partial relief to the petitioner, by reducing the penalty from Rs. 50,00,000/- to Rs. 23,00,000/- observed that the Original Authority was wrong in invoking Section 111 (m) of the Customs Act, and the correct provision would be, Section 111 (d) of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. In the order-in-original passed by the first respondent, there is a reference to the direction issued by the Directorate General of Heath Services, New Delhi, vide letter, dated 18.07.2017, stating that the import relates to spurious drugs, as affirmed by the Assistant Drug Controller (I) Port Office, Chennai, and authorized Indian Agent, M/s. Eastern Chemicals (Mumbai) Private Ltd., and it would not be appropriate to allow the re-export. This appears to have been one another reason for rejection of the petitioner's request for re-export. Notice. 7.Mrs. R.Hemalatha, the learned Senior Panel Counsel, accepts notice on behalf of the respondents. The Senior Panel Counsel is directed to get instructions and also produce a copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proposal in the show cause notice and ordered absolute confiscation of the goods, imposed penalty and rejected the request for re-export of consignment. This was confirmed by the Appellate Authority. In order to ascertain as to whether the product was spurious or not, this Court issued an interim direction on 26.10.2017 to the following effect: "Heard Mr.Vijaynarayan, learned Senior Counsel appearing for Mr.S.Baskaran, learned counsel on record for the petitioner. 2. On 13.10.2017, this Court, after hearing the arguments of the learned counsel on either side, formulated issues, which would fall for consideration in the writ petition. The learned Senior Panel Counsel appearing for the respondents was directed to get instructions and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the first respondent to draw samples from the consignment imported by the petitioner, which are stated to have been stored in a warehouse at Numbal, Chennai-77, in the presence of the importer. The samples shall be sent to the Central Laboratory mentioning the date, on which, the sample is drawn as well as the date, on which, the goods were imported. On the next hearing date, along with the counter, the respondents shall submit the test report from the Central Laboratory. 6. List on 27.11.2017." 7. Pursuant to the above direction, the samples were drawn in six batches and forwarded to the Central Drugs Testing Laboratory, Chennai and a certificate has been issued by the Director of the said Laboratory dated 22.11.2017, certifying tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rugs of that description in the consignment, to the country in which they were manufactured or forfeit them to the Central Government which shall cause them to be destroyed." 9. In terms of the above Rule, if the drug contravenes in any other respect, the provisions of Chapter III of the Drugs and Cosmetics Act or the Rules thereunder and that the contravention is such that it cannot be remedied by the importer, the Customs Collector shall communicate the report forthwith to the importer, who shall, within two months of his receiving the communication either export all the drugs of that description in the consignment, to the country in which they were manufactured or forfeit them to the Central Government which shall cause them to be destr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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