TMI Blog2024 (3) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... t and a single letter of credit executed with the exporter of the country of origin. Be as it may, the department only at the time of last imports (out of six) chose to have the matter examined by the Plant Quarantine Authorities, which report undisputedly was not in contravention or violation of the statutory provisions - the test report has emanated almost after a gap of five months and has therefore chosen to disregard the findings under the presumption I therefore hold that a Garlic Bulb can become dry during this period . The delay in such test reporting certainly cannot be attributed to any omission or commission of delinquency on the part of the appellant. All these evidences have been simply ignored without even a thought. Furthermore, a Bulb is understood in local parlance as a short stem with fresh leaves or leaf bases that function as food storage organs during dormancy. It is very well known that Garlic, an agricultural produce, occurs as a bulb. Upon drying it loses moisture content to a large extent, but retains its shape as a bulb. Therefore, the mention of the term Garlic Bulb cannot be considered as determinative of the fact of it being dry or not. For which, if at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they had declared the impugned goods as Dried Garlic and free from quarantine pests. It is not disputed that the test reports, sent by the Department, drawn from one of the Bills of Entry (No.105 MGH/1112 dated 17.12.2011) and sent to Plant Quarantine Station, Guwahati had confirmed that received Garlic (small size Bulbs - sample under Bill of Entry No. 105 MGH/1112 dated 17.12.2011 and imported from Bangladesh), was examined and found to be in good condition and free from all pathogens. The goods were subsequently also sent by the department to the Referral Food Laboratory, Kolkata and were described as Dried Garlic . The said report pointed out that the samples were received on 30.04.2012 and analyzed on 02.05.2012 and completed analysis on 05.05.2012. The said test report certified absence of (i) off odour, mustiness, fermentation and rancidity; (ii) mould, living/dead insect, insect fragments and rodent contamination; (c) stalks, peels, stems and extraneous matter. 3. The department disputed the contention of the appellant about the nature of imported goods as Dried Garlic essentially on the basis of pointing out in para 1.2 of the Show Cause Notice that the Assistant Plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 228897 vide which certain definitions have been mentioned regarding dried garlic, semi dried garlic and green garlic. The same is reproduced below:- This standard applies to garlic of varieties (cultivars) grown from Allium Sativum L. to be supplied fresh (1), semi-dry (2) or dry (3) to the consumer, green garlic with full leaves and undeveloped cloves and garlic for industrial processing being excluded. (1) Fresh garlic means produce with a green stem and with the outer skin of the bulb still fresh. (2) Semi-dry-garlic means produce with the stem and the outer skin of the bulb not completely dry. (3) Dry garlic means produce in which the stem, the outer skin of the bulb and the skin surrounding each clove are complete dry . 5. The Ld.Authorized Representative for the department however supports the adjudication and the order appealed and submits that the goods were mis-declared and the appellants were rightly subjected to short levy and penal consequences. 6. Having heard the rival contentions and perused the documentary evidence on record, we note that there is no mis-declaration on the part of the appellant and if at all there was any breach it was a technical breach of importin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . For which, if at all it was imperative for the department to get the water contents verified as they sought to dispute the classification declared and re-classified the product under heading 7032000. For this failure on the part of the department the assessee/importer/appellant cannot in any way be held responsible. 8. The DGFT VIDE Policy Circular No.32(RE-99)/2000 dated 17th September, 1999 have clarified that Dried Garlic classified under EXIM code No.071290.04 of ITC (HS) Classification, would be treated as Dried Garlic provided the moisture content thereof does not exceed 10% irrespective of the method of drying. Neither in the impugned SCN nor in the OIO, there was any mention that water content of the samples taken exceeded 10%. Therefore, view taken by both the adjudicating authority (in the OIO) and the Commissioner(Appeals) regarding classification of the garlic is unfounded and without a basis. 9. The appellant in support of their contention as to the nature of the product has relied on the following decisions:- (a) J.B. Impex Vs. Commissioner of Customs, Nhava Sheva 2001 (134) ELT 0210 (Tri.-Mumbai) Thus if the subject vegetable is known and understood in commercial p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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