TaxTMI 
TaxTMI 
2017 (6) TMI 1059
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.... Export Company Limited, Zhangjiagang City, China, for supply of 5000 kgs. of Bronopol. The price for Bronopol was fixed at USD 4.50 per kg CIF, Chennai. The said goods were packed and despatched from Shanghai Seaport on 22.03.2015 to Chennai Seaport. Along with the consignment, the supplier sent the relevant import documents like packing list, cargo insurance policy, certificate of origin, quality inspector reports and certificate of analysis through its banker. After making the payments, the appellant retrieved the documents from its banker and thereafter filed Bill of Entry No. 8852905 dated 08.04.2015, with the office of the concerned authorities, for assessment and clearance of the subject goods. The subject goods were not released by the authorities, for the reason that the appellant has to put up technical literature with respect to the goods and its classification adopted in CTH 2930 9099, besides submitting the other import documents, already furnished. While the same were furnished, the concerned authority again directed the appellant to furnish a Central Insecticide Board (CIB) Registration Certificate, with respect to the subject goods. The appellant contended before th....
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....rther, based on the decision of the Kerala High Court in the case of Maliakkal Industrial Enterprises vs. Union of India, in a batch of writ petitions, reported in 2013 (290) ELT 330 (Kerala), vide its order dated 15.02.2012, it has been held that the authorities under the Foreign Trade (Development and Regulation) Act, 1992 do not have control over the authorities under the Insecticide Act, 1968 and cannot direct them to do something, which they are not permitted to do under the Insecticide Act and hence has held that the condition of obtaining Registration under the Insecticides Act 1968 would be arbitrary, unreasonable and violative of Article 14 of the Constitution of India. 4) The appellant also raised a ground that the classification for the subject goods are adopted under CTH 2930 9099 and the appellant are entitled to import the subject goods, mainly under the Circular No. 401/101/2011-Cus III dated 26.02.2011, issued on the basis of Section 38 of the Insecticides Act, 1968. 5. The aforesaid appeal filed by the appellant was rejected by the Commissioner of Customs (Appeals II) on 30.06.2015, holding that the plea of the appellant cannot be accepted, as the decisions re....
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....t even for non-insecticidal purposes, an import permit from the registration committee under the department of Agriculture and Co-operation is mandatory. Therefore, for the reasons stated above, the authority had rejected the request for release of consignment and had informed the appellant company, to submit the import permit/ registration certificate. 9. Further, learned counsel for the appellant had submitted that the Tribunal has not considered the declaration made by the appellant company, to the effect that the subject goods are used only for non insecticidal purpose, as sufficient and there is no necessity to produce evidence to prove the usage of the goods for the said purpose and if the appellant company violates the conditions for the usage of the goods, the department can take action under the Customs Act, 1962. However, with evidence it is proved that the said substance is used for non-insecticidal purpose and the burden is to be discharged by the appellant. The self declaration stating that he will use the substance for non-insecticidal is not sufficient and he must satisfactorily explain the method of usage. While it is the allegation of the department against the ap....
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....ard under Section 9 of the said Act, when the goods under import are admittedly for non-insecticidal use. 13. The appellant is a proprietary firm involved in the business of trading of pharmaceutical products, substances, organics etc. The appellant firm possessed the import export code, issued by the office of the Director General of Foreign Trade, in No. 040904283 and was also holding a licence under Drugs and Cosmetics Act, 1940. The appellant company imports pharmaceutical products, substances etc., from overseas suppliers like China. On 16.02.2015, the appellant company entered into a sales contract with a Chinese supplier namely, Jiangsu Guotai Intl. Group, for supply of 5000 kgs. of Bronopol 99% Min., under the contracted price of USD 22,500. The appellant company paid part payment for the consignment, to the tune of USD 6750, through his banker, on 05.03.2015. The certificate of analysis was issued by the supplier to the appellant. On 16.03.2015 commercial invoices were raised by the supplier and the goods were shipped from Shanghai Port, China to Chennai on 22.03.2015, under Bill of lading No. WP1500904. While the appellant initiated to clear the subject goods, it was not....
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....8 of the Insecticides Act, 1968, reads as follows :- "38. Exemption (1) Nothing in this Act shall apply to -- i. The use of any Insecticide by any person for his own households purposes or for kitchen garden or in respect of any land under his cultivation. ii. Any substance specified or included in the Schedule or any preparation containing any one or more such substances, if such substance or preparation is intended for purposes other than preventing, destroying, repelling or mitigating any insects, rodents, fungi, weeds and other forms of plant of animal life not useful to human beings. (2) The Central Government may by notification in the official gazette and subject to such conditions, if any, as it may specify therein, exempt from all or any of the provisions of this Act or the rules made thereunder, any educational, scientific or research organisation engaged in carrying out experiments with insecticide. " So, reading of the aforesaid provision would clearly show that if any substance is imported for non-insecticidal use, the provisions of the Insecticides Act, 1968 will have no application. 16. However, the Notification No. 106/2014/2009-2014 dated 01.01.2015 issue....
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....mething, which they are not permitted to do under the said Act and hence has held that the condition of obtaining Registration under the Insecticides Act 1968 would be arbitrary, unreasonable and violative of Article 14 of the Constitution of India. 17. The decision relied by the learned counsel for the appellant, challenging the said notification dated 01.01.2015 before the Kerala High Court, in a similar issue, in the case of Union of India vs. Maliakkal Industrial Enterprises, reported in 2013 (290) ELT 330 (Kerala), has been subsequently reversed by the Hon'ble Division Bench of the Kerala High Court, reported in 2015 (330) ELT 924 [Kerala]. In paragraph 16 of the said judgment, it has been held as follows :- "16. From the above cited decisions, we arrive at the following conclusions : An executive instruction or a policy, which is not a statutory document, cannot form the basis for creation of an enforceable legal right. This obviously is based on the principle of law that executive instructions by themselves are ordinarily not enforceable. Such an executive instruction or policy, which could be amended at any time, could not form the basis to claim fundamental right ....