TaxTMI 
TaxTMI 
2022 (5) TMI 1318
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....their value as Rs.48,21,120/- &Rs.55,76,010/-, respectively. On 100% examination of the imported consignment, shortageswere noticed; in the first Bill of Entry no. 4928291 dated 24.09.2018 against declared quantity of 1,32,280 pcs., 1,26,000pcs and in the second Bill of Entry no 5828079 dated 2.4.2018 against 1,49,918 pieces 1,47,007 pieces had been found. Also, during the said examination it came to the notice of the Customs Department that the imports were mis-declared being not supported with certificate of the Controller of Drugs and Cosmetics Organization (CDSCO) and also the goods were grossly undervalued. Consequently, the goods were seized for further investigation. On completion of the investigation, show- cause notice was issued to the appellants alleging import of aforesaid goods without valid CDSCO certificate, gross mis- declaration of the value of the goods resulting into short payment of duty. Consequently, differential duty amounting to Rs.99,99,241/- was demanded under Section 28(4) of the Customs Act, 1962, confiscation of the seized goods and penalty was proposed on the appellants, M/s Gallardo Trading Pvt. Ltd. under Section 112(a), 114A of the Customs Act, 1962....
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....ere not in compliance with the condition of registration granted by the Licensing Authority, hence contravenes Rule 129 and the import is under contravention of the Section 10(c) and (f) of the Drugs and Cosmetics Act, 1940. Further, he has submitted that as per Rule 131(3) of the Drugs and Cosmetics Rules, 1945 when it is reported to the Collector of Customs that the sample of imported cosmetic item in a consignment contravenes the provisions of Chapter III of the Drugs & Cosmetics Act,1940 or the Rules made thereunder and the contravention is such that it cannot be remedied by the importer, the Collector of Customs shall communicate the report forthwith to the importer, who shall within two months of receiving such communication, re-export the cosmetics so imported and failing such re-export the same shall be handed over to the Central Government who shall cause it to be destroyed. It is the contention of the learned Advocate that in the present case the appellant in exercise of the said option of re-export, requested for re-export to the Commissioner of Customs. The learned Commissioner instead of allowing the re-export directed absolute confiscation of the goods. It is his argu....
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....export of goods contained under the Drugs and Cosmetics Rules, 1945 has not been examined and accordingly, the said judgments cannot be held as precedent on the issue in question. 6. Further, he has submitted that the decision of Larger Bench in the case of Hemant Bhai R Patel Vs. Commissioner of Customs - 2003 (153) ELT 226 (Tri-LB) is not applicable to the facts of the present case as in the said judgment while permitting re-export of the confiscated goods, which are allowed to be redeemed, it was observed that the adjudicating authority has the power to impose fine and penalty. It is submitted that the said decision is not rendered in the context of violation of Drugs and Cosmetics Act and Rules made thereunder insisting re-export of the imported goods being in contravention of Chapter III to Drugs and Cosmetics Act, 1940. It is alternatively argued on behalf of the Appellant that in the event it is held that the goods are liable for confiscation and penalty, then re-export of the goods be allowed on imposition of nominal/minimum fine and penalty. Further, arguing for other Appellants Shri Sunil Yadav, Director and Shri Siddiq Yusuf Merchant it is submitted that imposit....
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.... of Customs Act, 1962, the provisions of Drugs and Cosmetics Act, 1940 and the rules made thereunder are also violated by importing goods which are not supported by valid CDSCO certificate, as such goods are prohibited from importation. Consequently, 2,19,435 pcs. of the imported goods since not in compliance with CDSCO certificate cannot be permitted to be cleared for home consumption, therefore, cannot be allowed to be redeemed on payment of fine under Section 125 of the Customs Act, 1962 accordingly confiscated absolutely. In support of his submission, the learned AR referred to the judgment of Hon'ble Madras High Court in the case of ALM Enterprises Vs. Commissioner of Customs (Imports), Chennai - 2017 (353) ELT 289 (Mad). and this Tribunal in the case of Dhananjay Balchandra Desai Vs.CC 2020-TIOL- 194-CESTAT-Mum. 8. Heard both sides and perused the records. 9. The principal issue as raised by the Appellants is: whether the request for re-export of the imported cosmetics of 2,19,435 pieces, without CDSCO certificate, and 35,712 pieces with CDSCO certificate be allowed or otherwise. The undisputed facts are that the appellants had filed two Bills of Entry d....
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.... imported or hand it over to the Central Government, which shall cause it to be destroyed. It is their contention that once the imported goods were found not in conformity with Rule 129 of the Drugs and Cosmetics Rules, 1945, the Commissioner of Customs ought to have following sub-rule (3) of Rule 131, afforded an opportunity to them to re-export the goods. 11. Before analyzing the correctness of the said argument, it is necessary to refer and reproduce the relevant rules of Drugs and Cosmetics Rules, 1945: - "129.Registration of cosmetic products imported into the country.- No cosmetic shall be imported into India unless the product is registered under the rules by the licensing authority appointed by the Central Government under rule 21 or by any person to whom such powers may be delegated under rule 22. .................................................... 131.Procedure for the import of cosmetics.− (1) If the officer appointed at the post of entry by the Central Government has reason to believe that any cosmetic contravenes any of the provisions of the Act or the rules made thereunder he may take sample of the cosmetic from the consignme....
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....t make a representation against the report to the Collector of Customs who shall forward the representation with a fresh sample of the cosmetic to the Drugs Controller, India, who afterobtaining, if necessary, the report of the Director of the Central Drugs Laboratory shall pass orders thereon which shall be final. (4) If the Drugs Controller or any other officer empowered by him in this behalf with the approval of Central Government reports to the Collector of Customs after the inspection of the sample of cosmetic and if necessary, after obtaining a test report thereon that the sample of the said cosmetic contravenes in any respect the provisions of Chapter III of the Act or the Rules made thereunder but that the contravention is such that it can be remedied by the importer, the Collector of Customs shall communicate the report forthwith to the importer and permit him to import the cosmetic on his giving an undertaking in writing not to dispose of the cosmetic without the permission of the officer authorised in this behalf b....
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....the Drugs and Cosmetics Rules,1945, in absence of any contrary provisions under the Customs Act, 1962, which has not been cited before us. At the cost of repetition, it appears that the imported cosmetics are considered as prohibited at the threshold of its import, being not supported by the Registration Certificate issued under Drugs and Cosmetics Act, 1940 and the rules made thereunder. Therefore, the issue of under valuation of the goods and contravention of other provision of Customs Act,1962 would arise thereafter, to dispose the goods accordingly. This Tribunal dealing with disposal of imported goods not in compliance with the Bureau of Indian Standards, expressed more or less similar view in the case of Global Enterprises Vs.CC,Nhava Sheva - 2019 (169) ELT 1596 (Tri.-Mum). 14. Also, the principle laid down by this Tribunal in Nathi Mal Rugan Mal's case(supra) relied by the Commissioner in directing absolute confiscation is not applicable to the facts of the present case, for the simple reason that the Tribunal in the said case was confronted with the question whether after allowing redemption of the goods on payment of appropriate fine, the assessee be forced to exp....