TMI Blog2024 (2) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... only for back to the origin purpose inspite of the fact that the petitioner has paid the required duty under the Act. It is also not the case of the respondent authority that the goods are imported in violation of any provisions of the Customs Act, but in view of the Rule 45 of the Rules the petitioner could not have imported the goods at part which is not specified in the said Rule, the goods therefore have been confiscated as per Section 111 and 112 of the Customs Act, 1962 - the respondent authority ought to have permitted the clearance of the goods to the petitioner on payment of the redemption fine for home consumption. It is opined that as the petitioner has imported such goods at the place other than the places specified in Rule 45 of the Insecticides Rules, 1971, the petitioner is penalized and redemption fine is imposed for committing such mistake for which the petitioner has already paid Rs. 5,00,000/- towards redemption fine imposed by the respondent authority. In such circumstances the respondent authority ought to have permitted the petitioner for clearance of the goods on payment of redemption fine for home consumption. As the breach of Rule 45 of the Insecticides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is engaged in the manufacture and import of insecticides, pesticides and other agrochemicals including technical such as Cyantraniliprole Technical (the Impugned Goods ) into India. 4.2. The Petitioner is a registered entity with the Ministry of Agriculture and Farmers Welfare, whereof the Central Insecticides Board and Registration Committee has issued a Registration Certification under Section 9(3) of the Insecticides Act, 1963 in favour of the Petitioner for import of several insecticides including Cynatraniliprole Technical 93% w/w min. 4.3. That, the Petitioner imported a total of 10,000 Kgs. Net weight [Gross Wt. 11340 Kgs (40 CTN)] of the impugned goods described as Cyantraniliprole Technical 93 w/w Min falling under CTH 38089199 valued at Rs. 31,97,73,200/- involving total customs duty to the tune of Rs. 9,90,65,737/- from overseas supplier M/s. FMC Agro Singapore Pte. Ltd., originating from China. 4.4. That, the Petitioner filed the Bill of Entry through the CHA, M/s. Tulsi Logistics, at Hazira Adani Port, after duly declaring the import of impugned goods under CTH 38089199 along with mandatory authorization from the Central Insecticides Board, as required u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds imported by the Petitioner were prohibited as the same were in violation of the prohibition under Insecticide Rules and was mandatorily liable for re-export . 5. Learned Senior Advocate Mr. Joshi submitted that pursuant to the impugned order in original passed by the respondent the petitioner has already paid Rs. 5,00,000/- towards redemption fine under Section 125 of the Customs Act, 1962, in lieu of the confiscation of the subject goods. 5.1. It was submitted that the petitioner is aggrieved by the direction issued by the respondent in the order to the effect that the importer may redeem the goods only for the back to origin purpose . 5.2. It was submitted that because of such direction, the respondent authority is not permitting the petitioner to clear the goods for home consumption inspite of payment of duty of Rs. 9,90,65,737/- at the time of filing of bill of entry by the petitioner on the ground that the goods are prohibited goods as they were imported at the port which is not recognized under Rule 45 of the Insecticides Rules, 1971. 5.3. Learned Senior Advocate Mr. Joshi referred to and relied upon the averments in the affidavit-in-reply filed on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner herein raised the aforesaid concerns vide communication dated 1st November 2023 and requested for personal hearing from the Respondent Authorities. However, the said Authorities have neither responded to the said communication nor permitted the Petitioner to clear the goods. 5.9. Despite the Petitioner's request/representation for warehousing the goods, the Respondent Authorities by their communication dated 20th November 2023 only permitted the Petitioner to de-stuff the goods and not warehouse them. 6. On the other hand learned senior standing counsel Mr. Nikunt Raval for the respondents submitted that the petitioner has an alternative efficacious remedy under Section 128 of the Customs Act, 1962 to challenge the impugned order and in view of the alternative remedy, this petition may not be entertained. 6.1. It was further submitted that as per the Rule 45 of the Insecticides Rules, 1971, the goods imported by the petitioner at Hajira Port has become prohibited goods and therefore the respondent-authority was justified in directing the petitioner to redeem the goods only for back to the origin purpose, meaning thereby that the petitioner is required to re-export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticide into India being amended by the Insecticides (Fourth Amendment) Rule 2017, as notified by the Ministry of Agriculture and Farmer Welfare. the places at which the insecticides may be imported - No insecticides shall be imported into India except through one of the following places namely: i) Inland Container Depot, Gurugram (Gurgaon), Haryana, ii) Chennai Port, Jawaharlal Nehru Port and Mumbai Port (Mumbai), in respect of insecticides imported by sea into India, ii) Chennai International Airport (Chennaij, Chhatrapati Shivaji International Airport (Mumbai), Indira Gandhi International Airport (New Delhi), in respect of insecticides imported by air into India. From the above, it is crystal clear that the goods viz 'Cyantraniliprole' is an insecticide covered under Insecticides / Pesticides Registered under section 9(3) of the Insecticides Act, 1968 and the same has been imported at Adani Hazira Port, in violation of Rule 45 of Insecticides Rules, 1971 (framed under the provisions of the Section 36 of the Insecticide Act, 1968), as amended. Further, the Hon'ble Apex Court in the case of M/S Om Prakash Bhatia vs Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If conditions are not fulfilled, it may amount to prohibited goods. This is also made clear by this Court in Sheikh Mohd. Omer v. Collector of Customs, Calcutta and Others (1970) 2 SCC 728] wherein it was contended that the expression 'prohibition' used in section 111 (d) must be considered as a total prohibition and that the expression does not bring within its fold the restrictions imposed by clause (3) of the Import Control Order, 1955. The Court negatived the said contention and held thus:- ... What clause (d) of Section 111 says is that any goods which are imported or attempted to be imported contrary to any prohibition imposed by any law for the time being in force in this country is liable to be confiscated. Any prohibition referred to in that section applies to every type of prohibition . That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression any prohibition in section 111 (d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947, uses three different expressions prohibiting , restricting or otherwise control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and Insecticide rules. Further, the Petitioner can redeem the goods on payment of redemption fine imposed. However, imported goods being insecticide can not be cleared for home consumption from Hazira port on payment of redemption fine and it is pertinent to mention that the Petitioner had never applied for transshipment of the goods to a specified port. Therefore, only one option of re -export was left. Accordingly, the Petitioner was allowed to re-export the goods. j. With respect to Para J, it is submitted that the Petitioner had committed an offence by trying to clear the prohibited goods from Hazira port. It is on record that Petitioner had never approached until the customs detected the offence. In the foregoing paras, it is well explained that import of insecticides is prohibited at Hazira Port. The Petitioner has been therefore penalised under section 112 of the Customs Act for the offence committed on their part. k. With respect to Para K, it is submitted that as per ITC-HS policy, there is no restriction or prohibition for import of insecticides. However, import of insecticide is permitted subject to the license issued under the insecticides Act, 1968 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roker to check all the compliance for the goods to be imported as per section 17 of the customs Act read with Bill of Entry (Electronic Integrated Declaration and Paperless Processing) Regulations, 2018. q. With respect to Para Q, it is submitted that as claimed by the Petitioner, due to supplier's mistake goods had arrived at Hazira Port and therefore Petitioner should have applied for transhipment of the consignment to the specified port instead of filing of Bill of Entry at Hazira Port. The Petitioner had never applied for transhipment and tried to clear the goods in violation of the Customs Act. 7. Referring to the above averments it was submitted that the petition is liable to be dismissed as the petitioners have not made out any ground for the prayers made in the petition. 8. Having heard the learned advocates for the respective parties it appears that the respondent authority has passed the following order: (i) I confiscate the goods Cyantraniliprole Technical 93 w/w Min valued at Rs. 31,97,73,200/- imported vide Bill of Entry No. 7332010 dtd 12.08.2023 under Section 111(d) of the Customs Act, 1962. I hereby impose Redemption Fine of Rs. 5,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
