TaxTMI 
TaxTMI 
2013 (3) TMI 166
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.... was that the impugned goods described in the tables appearing in Para-1 and para-9 of the adjudication order were imported by the appellants from China not through prescribed point of entry into India. This was noticed when the appellant filed Warehousing Bill of Entry No. 5286233 dated 24-11-2011 for storage of the said goods in the Customs bonded warehouse at Pithampur. According to customs those were cosmetics and entry thereof to India ought to have been made through Nhava Sheva in Mumbai which is notified point of entry of import thereof. The description of goods as per Bill of Entry was as under : Invoice No. & Date Description of goods & sizes Quantity (Pcs) Unit Price (USD) (C&F) Total Value (USD) (C&F) Total CIF Value (Rs.) AJ11AQ4130026 dated 31-8-2011 "Z" MAGNETISM FOR MEN DEODORANT BODY SPRAY 150ML/100G 1,39,200 0.6667 92,804.64 46,47,659.16 2.2 Similarly second lot of goods imported in the manner stated above as described in the para 9 of the adjudication order were as under in terms of warehousing bill of entry 5529206 dated 21-12-2011 filed to avail the storage facility. Invoice No. & Date Description ....
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....quality requirement as clear from the annexure of the Deputy Drug Controller's letter; hence, the same cannot be prohibited goods; (h) that storing of the subject goods in the bonded warehouse was with a clear intent to remove/take back/shift/transport the said goods to a notified port/other point of entry for Customs clearance once the issues are clarified; (i) that their goods cannot be said to have been imported into India or attempted to be imported into India violating the prohibition contained in the provisions of Drugs and Cosmetic Act and Drugs and Cosmetic Rules; hence, the goods are not liable to confiscation, they are not liable to penalty and the SCN is liable to be dropped;" 4.1 In appeal before Tribunal, appearing through different Counsels on different dates it was submitted on behalf of the appellant that the goods imported being "substance" falling under Sl. No. 1 of schedule "D" appended to the Rules falls under Rule 132 thereof read with Rule 43 enjoys exemption from applicability of the provisions of chapter III of the Drugs & Cosmetic Act, 1940 and Rules made thereunder. Therefore the restriction of Point of entry is not applicable. To support its argu....
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....s defined by Section 3(b) of the Drugs & Cosmetic Act, 1940. 5.3 Emphasis was placed by Revenue on entire circular issued by C.B.E. & C. to submit that adjudication was done properly in respect of wrongful entry of the goods through different point contravening the provisions of the Drugs & Cosmetic Act, 1940, which called seizure & confiscation thereof. Therefore adjudication being made properly should not be interfered. 6. Heard both sides and pursue the record as well as the provisions of the Drugs & Cosmetic Act, 1940, and Drugs & Cosmetic Rules, 1945 including the Circular No. 8/2010-Cus., dated 26-3-2010 issued by C.B.E. & C. 7.1 Factual background of the case depicted at the outset remained undisputed by both sides. Accordingly the appeal called for answering whether the goods imported were "cosmetics" or "substance" falling under Rule 133 read with Rule 43 of the Drugs & Cosmetics Rules, 1945 and whether cosmetic is permitted to be imported through a point of entry different from point of entry prescribed by Rule 43A read with C.B.E. & C. Circular No. 8/2010-Cus., dated 26-3-2010. So also when Rule 133 and Rule 43A apply whether there is contravention of the provis....
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....cause disease in human beings or animals as may be specified from time to time by the Central Government by notification in the Official Gazette; (iii) all substances intended for use as components of a drug including empty gelatin capsules; and (iv) such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board" [Emphasis supplied] 7.4 The term "drug" as defined by Section 3(b) of the Drugs and Cosmetic Act, 1940 has inclusive definition covering "substance" within its fold by sub-clause (ii) and (iii) thereof. Accordingly that term not only includes medicines but substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of diseases in human beings or animals are covered in the ambit of "drug". Thus any "substance" which would be used for the preparation of medicine is also included in the scope and ambit of the term "drug". Only when a "substance" is not intended for medicinal use, such substance enjoys exempt....
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....ed to mean "cosmetic" also. In Schedule "D" appended to Drugs and Cosmetics Rules, 1945 both the words i.e., "substance" and "cosmetic" appears under independent serial number bringing out significant difference between the two without being interchangeably used one for the other for their distinct character, nature and properties. So the argument of Appellant that "substance" covers "cosmetic" within its scope is devoid of merit. 7.7 There is no dispute that present imports were cosmetic. That was not a "substance" since cosmetic is different goods altogether. Importation of Cosmetic undergoes the process of Rule 133 of the Rules read with Rule 43A through specified point of entry under the said Rule. At this juncture clarification issued by C.B.E. & C. vide Circular No. 8/2010-Cus., dated 26-3-2010 has relevance and Paras 2, 3 and 4 thereof explains the position as under : "2. In terms of Rule 133 of the Drugs and Cosmetics Rules, 1945, no cosmetics shall be imposed into India except through the points of entry specified in Rule 43A of the said Rules. Further, under Schedule "D" to the said Rules read with Rule 43, an exemption has been provided to certain categories of sub....
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....position of law and the citation made by appellant in the case of Max Overseas v. CC, Marnagoa - 2010 (254) E.L.T. 479 (Tri.-Mum.) is of no avail. When the goods were not imported through prescribed point of entry under Rule 43A of the Rules, the goods are bound to suffer consequence of law prescribed by Customs Act, 1962 being 'prohibited goods' as defined by section 2(33) thereof. Accordingly confiscation of the cosmetic imported by the appellant was justified and other consequence of adjudication is in conformity with law. It does not appeal to common sense as to how the appellant shall gain out of the decision reported in 2010 (254) E.L.T. 479 (Tri.-Mum.) which is not a precedent. Appellant's further reliance on the decision reported in the case of CC, ICD, TKD, New Delhi v. Roshanlal Aggarwal & Sons Pvt. Ltd. - 2009 (245) E.L.T. 711 (Tri.-Del.) is also of no avail since that is not a precedent while violation of law makes import confiscable and liable to penal consequence. It is difficult to declare "prohibitory" goods as non-prohibitory and immune the breach of law from penal consequence. 7.9 The appellant relied on the judgment of Apex Court in the case of Hotel Ashoka v.....