TaxTMI 
TaxTMI 
TaxTMI 
2020 (2) TMI 1604
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....ion of legal aspects that the first appellate authority has relied upon to grant relief to the importer, requires us to exercise our minds in that direction too. 2. It is inevitable that any authority, principally concerned with specific aspects of enforcement, would, over a period of time, internalise that framework as inevitable in each and every situation. The respondent herein had imported goods that the original authority opined to be 'drugs' within the meaning of Drugs and Cosmetics Act, 1940 requiring compliance with certain conditions of import prescribed in Drugs and Cosmetics Rules, 1945 and, taking note of alleged breach, proceeded to invoke empowerment for confiscation under Section 111(d) of Customs Act, 1962 with option to pay fine of Rs. 2,29,83,185 in lieu and for imposition of penalty of Rs. 4,59,66,370 under Section 112 of Customs Act, 1962. 3. Customs Act, 1962, enacted particularly for assessment and collection of duties of customs on cross-border trade in goods, does enable imposing of prohibitions under Section 11 besides providing for an elaborate structure of statutory and physical control for enforcement. Just as the exigencies of administration....
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....The appellant, apparently, expects us to be their Snoopy for penalising the imports effected against Bills of Entry No. 5561700/24-12-2011, No. 5648554/4-1-2012, No. 5946289/8-2-2012, No. 6167219/5-3-2012, No. 6530511/22-4-2012, No. 4434697/23-8-2011, No. 5561528/24-12-2011 and No. 6586333/9-1-2012 by setting aside Order-in-Appeal No. RPS/56/NSK/2013, dated 25th February, 2013 of Commissioner of Central Excise & Customs (Appeals), Nashik. 5. The respondent, M/s. Mylan Laboratories Ltd., is a unit approved under the '100% export oriented unit' scheme notified in the Foreign Trade Policy and the impugned consignments had been off-loaded at Nhava Sheva, the 'port of discharge' designated in the bills of lading, for onward transhipment to ICD/CFS Nashik, the designated 'place of delivery' in the bills of lading. On arrival at Nashik, the importer filed 'into bond' bills of entry as stipulated in Section 46 of Customs Act, 1962 with no further record of clearance for home consumption in accordance with Section 47 of Customs Act, 1962. However, from the submission of Learned Counsel for respondent that the goods are beyond confiscation owing to non-availability and their operation ....
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....e of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on the human body for the purpose of repelling insects like mosquitoes;.....' in Section 3 of Drugs and Cosmetics Act, 1940. Referring to Circular No. 450/08/2007-Cus.IV, dated 22nd January, 2007 of Central Board of Excise & Customs, he further submits that the contents therein to the effect that 'the Central Drug Standard Control Organisation (CDSCO) is responsible for monitoring the quality of medicines manufactured, distributed, sold and imported into the country as per the provisions of the Drugs and Cosmetics (D & C) Act and Rules made thereunder. Chapter 3 of the Drugs and Cosmetics Act, 1940 deals with the control over drugs and cosmetics imported into the country. ...' not only highlights the criticality of such regulation but also accords recognition of the definition of 'drugs' in Drugs and Cosmetics Act, 1940. Learned Counsel for respondent has no specific counter-submission on this aspect. 7. The objectives of Drugs and Cosmetics Act, 1940 clearly i....
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....de the place at which the goods were sought to be cleared by the respondent. He argues that the positioning of competent authorities under Drugs and Cosmetics Act, 1940, as well as the risk of non-registration articulated in communication of Drugs Controller General of India, in No. 16/6-06-DC, dated 15th June, 2007, does not permit any latitude for leniency in this matter. He places reliance on the decision of the Tribunal in Sadanam Personal Products v. Commissioner of Customs, New Delhi [2013 (287) E.L.T. 455 (Tri. - Del.)]. Learned Counsel for respondent contends that, while the circular referred to supra restricts import of 'drugs' through the places enumerated therein, the subsequent Circular No. 8/2010-Cus., dated 26th March, 2010 clarifies the strict application thereof to 'cosmetics' in view of Rule 133 of Drugs and Cosmetics Rules, 1945 while conceding that some flexibility is available for 'drugs' in view of Schedule D of the said Rules read with Rule 43 of Drugs and Cosmetics Rules, 1945 which has been further elaborated in the communication of Drugs Controller General of India referred supra thus '....it was decided that at places where CDSCO offices already exist an....
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....les. That the concerned officials at the locations specified in Rule 43A of Drugs and Cosmetics Rules, 1945 are empowered to allow movement thereon to other locations for clearances under Customs Act, 1962 is unambiguously clarified. It is, therefore, not within the competence of customs authorities to exercise monitorial oversight over the enforcement of Drugs and Cosmetics Act, 1940, and the Rules framed thereunder, by designated officials nor to deny legitimacy of approvals granted by such competent authorities merely for the dubious satisfaction of visiting detriments on importers. Consequently, unless any breach thereof is brought to the knowledge of the proper officer of customs by competent authorities under Drugs and Cosmetics Act, 1940, the invoking of Section 111 of Customs Act, 1962 is without authority of law. Reliance on the framework of Customs Act, 1962 for determination of breach of Drugs and Cosmetics Act, 1940 and the Rules framed thereunder is not correct in law. The entry of the impugned goods into the country through Nhava Sheva, a permitted location, has been duly acknowledged by the Assistant Drugs Controller before allowing it to be moved to place of deliver....