Case Law Details
Beverly Hills Marketing Pvt. Ltd. Vs Commissioner of Customs (CESTAT Delhi)
After considering written submission of the appellant, the Adjudicating Authority vide impugned order has held that the appellant had attempted to clear goods imported vide Bill of Entry No. 6374054 dt. 14.05.2018 through non-notified ICD/ Port in violations of the provisions contained in Rule 133 read with Rule 43A of the Drugs and Cosmetics Rules, 1965 as import of drugs and cosmetics into India was not allowed through ICD, Garhi Harsaru. Accordingly, the Adjudicating Authority ordered for confiscation of impugned goods under Section 111(d) of the Customs Act, 1962 and gave an option to the appellant to get the same redeemed on payment of Rs.2,00,000/- in terms of provisions of Section 125(1) of the Act. A penalty of Rs. 1,50,000/- has been imported under Section 112(a) of the Act.
Having considered the rival contentions, CESTAT find that there is no deliberate violation of the provisions of port of restriction by the appellant as the goods have been imported through Nava Sheva, which is a notified sea port and further ICD, Garhi Harsaru falls under the jurisdiction of Commissioner of Customs, ICD, Patparganj. Further, I find that the competent authority under the Drugs and Cosmetics Act have issued ‘No Objection Certificate’ for release of the goods after inspection, and the appellant was registered under the Drugs and Cosmetics Act. Thus, this called for no adverse action against the appellant.
FULL TEXT OF THE CESTAT DELHI ORDER
The issue in this appeal is whether the appellant has been rightly subjected to confiscation of goods being imported Assorted Deodorant valued at Rs. 28,51,851/- imported vide Bill of Entry dated 14.05.2018 at ICD, Garhi Harsaru in alleged violation of provisions of the Drugs and Cosmetics Act read with the rules thereunder with option to redeem on payment of fine of Rs. 2 lakhs and further penalty of Rs. 1,50,000/- has been imposed under Section 112(a) of the Customs Act.
2. Brief facts of the case are that the appellant filed Bill of Entry No. 6374054 dated 14.05.2018, at ICD Garhi Harsaru, for clearance of Deodorant imported from M/s Parfum Parour, 6 Avenue Matignon 75008 Paris, France vide Commercial Invoice Nos.FA180042 dt. 31.01.2018 and B/L No. LHV1804267 in container CAXU3276758/20’ through their CHA M/s Professional Exim. The assessable value was declared as Rs. 28,51,851/- and duty to be paid was Rs.12,53,672/-.
3. The Assessing Group had ordered for first check for the subject consignment on 21.05.2018. Accordingly, the goods were examined 100% by the officers of port shed under supervision of DC (shed) in presence of G-Card holder of Customs broker, and the authorised representative of the importer. The goods were found to contain Assorted Deodorant, branded as per invoice, packing list & declared in the Bill of Entry. However, as per examination report, 3840 Pc. of DEO SI Fleuri 150 ml (40 CTN) declared as item No. 5 of bill of entry were not found. The supplier M/s Parfum Parour, Paris, France vide letter 04.06.2018 has confirmed that 40 ctn. Of DEO SI Fleuri 150 ml were short supplied at their end. Samples of the goods were also drawn for ADC N.O.C. It was found that the importer had imported cosmetics in violation of the Drugs & Cosmetics Rules, 1945 as import of drugs and cosmetics was not allowed at the said ICD port. The Drugs Controlling Authority gave ‘No Objection Certificate’ for release of the consignment so far as Drugs and Cosmetic Act & Rules was concerned, on hard copy of the bill of entry on 31.05.2018 as well online on EDI system.
4. Examination report given by shed officers and endorsed on the back of hard copy of the Bills of Entry which was countersigned by the CHA on behalf of the importer. It was found that the importer had imported cosmetics in violation of the Drugs & Cosmetics Rules, 1945 as imports of drugs and cosmetics is not allowed through ICD, Garhi Harsaru (a non notified port).
5. After considering written submission of the appellant, the Adjudicating Authority vide impugned order has held that the appellant had attempted to clear goods imported vide Bill of Entry No. 6374054 dt. 14.05.2018 through non-notified ICD/ Port in violations of the provisions contained in Rule 133 read with Rule 43A of the Drugs and Cosmetics Rules, 1965 as import of drugs and cosmetics into India was not allowed through ICD, Garhi Harsaru. Accordingly, the Adjudicating Authority ordered for confiscation of impugned goods under Section 111(d) of the Customs Act, 1962 and gave an option to the appellant to get the same redeemed on payment of Rs.2,00,000/- in terms of provisions of Section 125(1) of the Act. A penalty of Rs. 1,50,000/- has been imported under Section 112(a) of the Act.
6. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals) who was pleased to dismiss the appeal. Being aggrieved, the appellant filed appeal before this Tribunal.
7. Learned Counsel for the appellant inter alia urges that the issue is no longer res integra and under similar facts and circumstances this Tribunal have been pleased to hold in favour of the importer in the matter of M/s Roshanlal Aggarwal & Sons Pvt. Ltd., v. Comm. of Customs, ICD, Tkd., New Delhi -2009 (245) ELT 722 (Tri. Del.) and in M/s Highlink Exporters Pvt. Ltd., v. CC, ICD, Patparganj & Other ICDs –Final Order No. 50396/2020 dt. 03.02.2020. It is further urged that the goods were initially destined for clearance from ICD Patparganj which is one of the notified port under Rule 43A of the Rules, however, due to refusal of shipping line to accept the shipment for ICD, Patparganj, Delhi, the same had to be booked for ICD, Garhi Harsaru, Gurgaon. Admittedly, ICD Garhi Harsaru, is not a separate port but falls under jurisdiction of ICD, Patparganj Customs Commissionerate, hence is a part of ICD Patparganj. Further urged that the objective of drug regulatory system in the country, is to ensure availability of safe and effective quality of drugs or cosmetics; hence the notified ports have the facilities to conduct proper evaluation of the product before import. In the present case, appellant is registered under Drugs & Cosmetics Act and with respect to the present consignment, NOC has been issued by the concerned authority declaring it to be safe for import. With effect from 10.01.2019, ICD Mundra port now has been recognized as one of the notified ports as per Rule 43A of the Rules. Appellant has duly complied with the objective of the Drugs and Cosmetics Act and Rules; restrictions for import of goods from specified entry port is an administrative requirement, hence, import C/A No. 51042 of 2020-SM cannot be denied under such circumstances. Goods were subjected to 100% examination and were released by the Customs Authorities upon satisfaction about its proper import in accordance with law. No malafide intention ever existed or found to violate any provisions of Customs law or any rules thereunder.
8. Learned Authorised Representative appearing for the Revenue supports the impugned order.
9. Having considered the rival contentions, I find that there is no deliberate violation of the provisions of port of restriction by the appellant as the goods have been imported through Nava Sheva, which is a notified sea port and further ICD, Garhi Harsaru falls under the jurisdiction of Commissioner of Customs, ICD, Patparganj. Further, I find that the competent authority under the Drugs and Cosmetics Act have issued ‘No Objection Certificate’ for release of the goods after inspection, and the appellant was registered under the Drugs and Cosmetics Act. Thus, this called for no adverse action against the appellant.
10. Accordingly, the impugned order is set aside and the appeal is allowed with consequential benefits, in accordance with law.
(Pronounced on 08.03.2022).
