TMI Blog2023 (4) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... that the imported guar gum was of food grade. The test report of Balaji and the declaration of the Director of Balaji submitted during the hearing were examined. Neither the test report nor the declaration state any marks and numbers of the samples which were tested. Therefore, it is not satisfied that the test report of Balaji pertains to the imported goods and the samples which were tested were those samples which were drawn in the presence of both sides. Needless to say that any test report is as good as the sample which was tested. Unless the report can be correlated with the sample, the test report cannot be relied upon. Also the test report of Balaji mentions at the top See note 150 E(f) Under the Drugs and Cosmetics Act, 1940 and the Rules made thereunder and indicates against different parameters I.P. which apparently refers to the standards of Indian Pharmacopeia. The test conducted by Balaji is to check the imported guar gum against pharmacopeial standards and in so testing, it found that the total microbial content was higher than what was permissible as per IP. All other parameters were within the pharmacopeial standards. This report nowhere states that it t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60 kgs. @ Rs. 424.95) under Rule 3 and 4 of the CVR, 2007 with consequential duty liability and interest, if any. (ii) I order for confiscation of the impugned goods under section 111 (i) (m) of the Customs Act, 1962 with an option to redeem the same on payment of Redemption Fine of Rs. 15,00,000/-. (iii) I impose a penalty of Rs. 5,00,000/- under Section 112 (a) (ii) and Rs. 5,00,000/- under Section114AA of the Customs Act, 1962 on M/s Nanz Med Science Pharma Pvt. Ltd. (iv) I impose a penalty of Rs. 5,00,000/- under Section 112 (a) (ii) and Rs. 5,00,000/- under Section114AA of the Customs Act, 1962 on Shri Manmit Singh Malhotra, Director of M/s Nanz Med Science Pharma Pvt. Ltd. (v) I impose a penalty of Rs. 5,00,000/- under Section 112 (a) (ii) and Rs. 5,00,000/- under Section114AA of the Customs Act, 1962 on Shri Lakhvinder Pal Singh Puri, Director of M/s Nanz Med Science Pharma Pvt. Ltd . 2. Nanz imported guar gum (Hydroxypropyl Trimonium Chloride) and declared it to be of Technical Grade, Not for Pharma /food grade and declared a value of Rs.19.264 per kg. It declared the quantity of the guar gum imported against the Bill of Entry in two containers is as 16200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods was conveyed to Shri Lakhvinder Singh Puri and he would in return tell them whether the item was available in CANADA with their sister concern or had to be procured from other vendor/s. He further stated that it was Shri Lakhvinder Singh Puri who negotiated and decide on the prices, which prima facie proves his indulgence and influence in day to day working of the firm. Further I find that Shri Manmit Singh Malhotra, Director of the Company in his voluntary statement dated 19.04.2017 has stated that no order telephonic or otherwise was placed for import of the said consignment as the consignment was for trading purpose only. He further stated that purchase of goods for trading was solely done by Shri Lakhvinder Singh Puri which further strengthens the allegation leveled against the party in the Show Cause Notice that the parties are covered by Rule 2 (2) of the CVR, 2007 in terms of sub-rule (v) as Shri Lakhvinder Singh Puri directly controls the importer company as well as the foreign supplier . 4. Doubting the declaration that the guar gum imported was not of Pharma grade and was also not of food grade, samples were drawn by the departmental officers and sent for testing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red, they must be only of identical goods and cannot be even of similar goods. g) Even if the valuation and demand of duty are decided against the importer, there is no case to impose penalties on Shri Puri and Shri Malhotra. h) In view of the above, all three appeals may be allowed and the impugned order may be set aside. 6. Learned authorised representative supported the impugned order and submitted as follows: a) This is not merely a case of difference of views on the grade of the guar gum imported but is a case where Nanz mis-declared several aspects which came to light only on investigation. b) The quantity of the goods imported itself was mis-declared to the extent of 1,680 kg. c) A very important factor in determining the value of the imported goods and if they are related parties, it is a very significant factor. The appellant mis-declared that the overseas supplier and Nanz are not related. On investigation, when a statement was recorded, Shri Manmit Singh Malhotra clearly admitted that they were related parties. d) The price of guar gum was Rs. 424.95 per kg as per the NIDB data but the appellant declared only Rs. 19.264 per kg which is over 22 times ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od grade is based on the test reports of AES to whom the samples were sent by CRCL. The appellant did not dispute the samples being sent to this laboratory and in fact, had paid the fee for the testing also. Learned authorised representative for the Revenue has produced before the covering letter under which the samples were sent to the CRCL for testing which were further forwarded to AES. All samples which are drawn are entered in a register by the Customs and the entry number in the registered gives the correlation with the sample and these numbers were further correlated with the test reports. For these reasons, we find the test reports of AES credible and they state that the imported guar gum was of food grade. 9. We have carefully examined the test report of Balaji and the declaration of the Director of Balaji submitted during the hearing. Neither the test report nor the declaration state any marks and numbers of the samples which were tested. Therefore, we are not satisfied that the test report of Balaji pertains to the imported goods and the samples which were tested were those samples which were drawn in the presence of both sides. Needless to say that any test report is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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