TMI Blog2021 (1) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... ties could have given opportunity to the appellants for its redemption. As the same was not offered to the appellants now they can t ask for it, as no new case can be made at this stage. The goods in issue are not prohibited goods under the Customs Act, 1962 or under the provisions of Foreign Trade Policy and under any other law. Learned Counsel for the Appellant rightly submitted that if the department is so much concerned, then in the meantime it could have got the skimmed milk powder tested at the cost of the appellants in order to verify whether it meet the standards or not but nothing of the sort has been done. The learned counsel has specifically submitted that as per domestic laws the goods were sent to FSSAI for mandatory tests in terms of the provisions of The Food Safety and Standards Act, 2006. The FSSAI clearance was given by the authorities and it can very well be said that that the appellants have complied with the mandatory food safety standard under the Food safety standards Act, 2006 under the domestic law. The technical specification of the impugned goods clearly falls under the FSSAI regulation as per the direction issued under Section 16(8) of the Food Safety ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty vide Order-in-Original dated 28.8.2019 while relying upon Section 2(33) ibid considered the goods in issue as prohibited goods and ordered its absolute confiscation of the goods in issue u/s. 111(d) of the Customs Act, 1962 and also imposed a penalty of ₹ 1,00,000/- on the Appellants u/s. 112(a) of the said Act. Aggrieved the instant Appeal was filed. Since the skimmed milk powder in issue is having shelf life and is perishable in nature, therefore early hearing was granted by this Tribunal vide order dated 6.1.2020. 4. I have heard learned counsel for the Appellants and learned Authorised Representative for the Revenue and perused the case records including the written submissions and case laws cited by the respective sides. According to learned counsel, Skimmed Milk Powder is a specific entry in the DFIA and the said DFIA do not stipulate any condition that the said powder is subject to BIS standard and since the goods are freely importable under ITC (HS) classification of goods therefore they are eligible for DFIA benefit under the said transferable DFIA. According to learned counsel, the exemption of duty benefits was claimed on the strength of a transferable DF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) Mandatory Indian Standards of Bureau of Indian Standards (BIS) Quality of the products that are subject to mandatory Indian Standards, as applicable to domestic goods shall be required to comply with quality specified for the product as per same Indian Standards. For compliance of this requirement, all manufacturers/exporters of these produces to India, shall be required to obtained BIS license for using Standards mark on their product. The present list of items under mandatory BIS certification is given in Appendix-III of this schedule. As and when BIS notifies the quality specifications for new product(s) as an Indian Standards, the said Indian Standard would be deemed to be part of Appendix-III from the date of implementation of the said Indian Standards for the said product(s) and the import of that product(s) shall conform to that specified Indian Standard from the date of implementation as specified for the said product(s) by BIS. As per learned Authorised Representative from the above extract it is clear that the quality of goods that are subject to mandatory Indian Standard, as applicable to domestic goods, shall be required to comply with quality sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot a prohibited good/item, then certainly it is allowable under the DFIA scheme and at the most the authorities could have imposed redemption fine on the importer/appellants but no option to redeem the goods was given to the appellants rather the goods were ordered to be destroyed within 90 days by the Adjudicating Authority. Recently the Hon ble Delhi High Court in the matter of Additional Director General (Adjudication) vs. Its My Name Pvt. Ltd.; MANU/DE/1823/2020 has held that in case of goods which are not prohibited, section 125(1) mandates grant of permission, to the person, from whose custody or possession the goods were seized, the option to redeem the goods on payment of redemption fine. Although in the instant matter facts are different, but still the option ought to have been given to the Appellant. It is not disputed that the department did not ask for redemption fine and rather went for complete confiscation of the goods under the guise of prohibited goods, which is not correct as per discussions already made. In the said matter i.e. Its my Name Pvt. Ltd. (supra) the Hon ble High Court also rejected the submission of revenue that by virtue of gold/ silver jewellery, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icy according to which all imported goods shall also be subject to domestic laws, acts and rules, orders, regulation, technical specification, environmental and safety norms as applicable to domestically prohibited goods. The learned counsel has specifically submitted that as per domestic laws the goods were sent to FSSAI for mandatory tests in terms of the provisions of The Food Safety and Standards Act, 2006. The FSSAI clearance was given by the authorities and it can very well be said that that the appellants have complied with the mandatory food safety standard under the Food safety standards Act, 2006 under the domestic law. The technical specification of the impugned goods clearly falls under the FSSAI regulation as per the direction issued under Section 16(8) of the Food Safety Standards Act, 2006 regarding operationalisation of amended regulation regarding revised standards for milk and milk products etc., which includes essential parameters such as Milk fat (%), Milk Protein, Titrable acidity, Total ash content etc. Undisputedly FSSAI standards and BIS standards are complementary to each other and are not contrary. 7. Therefore as per the discussions made hereinabove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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