9911796707
TMI Blog2019 (3) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... ake, Vathal etc. and consigned to M/s. Worldwide Agro Products Enterprises Unit, Malaysia. There were 520 yellow coloured HDPE bags in which salt was declared to be packed was examined and sent for testing and found to be in the form of white crystalline powder which answered the tests for Ketamine Hydrochloride. Accordingly, a show cause notice dated 19.06.2010 was issued to M/s.Dhanalakshmi Exports, Shri A.P.T. Mahadevan and other noticees, inter alia proposing confiscation of quantity of 440kgs. Ketamine Hydrochloride valued at Rs. 1.54 crores allegedly kept concealed in declared cargo of free flowing Iodized salt and other export cargo. The SCN also proposed imposition of penalty under Section 114AA and 117 of the Customs Act, 1962 on M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant, the penalty imposed on the appellant is extremely unfair and baseless. The department has not seized any document or recovered any evidence so as to show that the appellant had signed the documents pertaining to export of the subject impugned goods. The statement given under Section 108 of the Customs Act, 1962 by Sathish Kumar and Kandasamy has not mentioned anything implicating the appellant with the impugned goods. The Commissioner has relied on the statement of Ambalavanan. However, the said person has not stated that the appellant has any connection with the impugned goods. Further, his statement is hearsay evidence. 3. The case of the department is that the goods that were intended for export without no objection certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hydrochloride is nothing but derivative of Ketamine. Ketamine Hydrochloride is a compound and derivative of Ketamine. The intention of the Legislature is not to restrict export of Ketamine. The notification covers the compounds and derivatives of ketamine in any form. Hence the case law relied upon by the ld. counsel for the appellant is not applicable. The ld. AR took assistance of the order of the Hon'ble High Court of Bombay in the case of R. Bharathi Dasan Vs. Union of India - 2009 (247) ELT 18 (Bom.). She submitted that in the said decision, the Hon'ble High Court of Bombay has granted bail to the petitioner therein who was arrested for export of Ketamine Hydrochloride without prior permission and approval of Narcotics author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in his further letter dated 7.10.2010 he alleged that the CHA is the person who has played the entire role and that the earlier statement was given under coercion. The involvement of the appellant is very much clear from the facts of the case. Thus, the penalty imposed is legal and proper. 6. Heard both sides. 7. The co-noticees of the proceedings had filed appeals before Tribunal and vide Final Order Nos. 42172 to 42176/2018dated 30.7.2018, the Tribunal had allowed appeals with consequential relief setting aside the penalties imposed upon them. The foremost contention raised by the appellant is that the impugned goods which are alleged to be smuggled out of India is Ketamine Hydrochloride. Notification 67/2007 mentions that no objecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 27.12.2007 under which restriction has been imposed only regarding Ketamine and not on export of Ketamine Hydrochloride. The attention of this Court was also drawn to the report of Forensic Sciences department, Government of Tamilnadu, Narcotics Division, Chennai - 4, a copy of which is available in page 183 of the paper book. In the said report, a finding was recorded to the effect that the samples drawn from the alleged contraband seized from Shahul Hameed was Ketamine Hydrochloride. At the bottom of the report, the following notes are found:- 1. Ketamine Hcl is the hydrocholoric salt of Ketamine 2. Ketamine Hcl is not covered under NDPS Act of 1985 3. Ketamine Hcl is an animal anaesthetic and is occasionally used as Human anaestheti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bharathi Dasan (supra). The said decision is with regard to bail application wherein the bail was granted to the petitioner therein. There is no discussion as to whether Ketamine and Ketamine Hydrochloride are one and the same in the said judgment. By judicial discipline, we are bound by the decision of the Hon'ble jurisdictional High Court in the case of M. Buhari (supra). 11. On facts, it is seen that the appellant was arrested while he was standing near Mahalakshmi Tower Lodge at Kovilpatti by the DRI officers. The shipping bill was not filed by the appellant. The appellant is neither the owner nor the exporter of the goods also. There is no direct evidence that the appellant had handled or had rendered any positive act for the smu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
