TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1269
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....rest on the said Customs duty, as at (i) above, under the provisions of Section 28AA of the Customs Act, 1962. (iii) I hold the goods covered under Bills of Entry for the period 30.06.2016 to 23.01.2020 to the Show Cause Notice, having total Assessable Value of Rs. 6,95,78,774/- liable to confiscation under Section 111(m) of the Customs Act, 1962. However as the impugned goods are not physically available for confiscation, therefore, I refrain from imposing redemption fine on such goods. (iv) I impose penalty amounting to Rs. 1,67,55,071/- (Rupees One Crore Sixty Seven Lakh Fifty Five Thousands Seventy One Only) / equivalent to the duty demand in (i) above upon M/s. Adinath Veterinary Products Pvt. Ltd. under Section 114A of the Customs Act, 1962. (v) I refrain from imposing any penalty under the provisions of Section 112 of the Customs Act, 1962 upon M/s. Adinath Veterinary Products Pvt. Ltd. as penalty under Section 114A of the Customs Act, 1962 has already been imposed upon them." (emphasis supplied) 2. The appellant is an importer of ELISA test kits and reagents for food testing. It claimed the benefit provided at serial no. 148 in the Notification No. 12/2012-Cus ....
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.... drugs or medicines. The emphasis / intent while granting duty exemption is that the drugs/ medicines / their salts and esters/ bulk drugs/ diagnostic test kits should be for life saving meaning thereby that the diagnostic tests should also be relating to diagnosis of illness in humans and animals. A perusal of the list 4 shows that it contains such Life saving drugs/medicines / their salts and esters and diagnostics test kits which are for saving lives/ related to medical diagnosis. The term 'diagnostic' used with test kits in the main body of the Notification gives a specification to all the items listed in the List 4 that they are for saving the lives / diagnosis of an ailment through tests. The change in the description by the importer from ELISA kit for food testing to ELISA kit for diagnostic purposes amply shows that the importer also knew that their goods do not fall within the purview of the Notification being food testing kits only. Further, the noticee has not submitted any reply against the contentions of the department, which shows that noticee has nothing in his defence to contradict the same. xxx xxx xxx 27.4 In the light of above findings, I hold that ....
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....ngly the differential duty amounting to Rs. 1,67,55,071/-(as summarised in Table-3 below) is liable to be recovered under the provisions of Section 28(4) of the Customs Act." (emphasis supplied) 9. The Principal Commissioner also imposed penalty upon the appellant under section 114A of the Customs Act and the relevant portion of the order is reproduced below: "29.3 It has clearly been brought out in the above discussions and the facts on record by the investigation that the importer has malafidely represented the impugned goods as "Elisa Kits for diagnostic purpose" with the sole motive of availing the benefit of S.No 148A / 108 A of notification No. 12/2012-Cus dated 17.03.2012 and S.No. 167 of the notification No. 50/2017-Cus dated 30.06.2017 which was not available to the impugned goods. The omission was intentional in this case which tantamount to fraud against revenue and the same cannot be exonerated. The legal requirements to invoke penalty provisions under Section 114A are same as those provided for invocation of extended period of limitation under Section 28 (4) of the Customs Act. Therefore, in essence, if the extended period of limitation under Section 28 is attrac....
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.... the appellant also submitted that apart from importing ELISA test kits for food testing, the appellant also imported ELISA kits for veterinary use which kits would be entitled to exemption, but this issue was not decided in Ilishan Biotech and this fact could also not be pointed out to the Principal Commissioner because the appellant had not appeared for personal hearing. 12. Shri Girijesh Kumar, learned authorized representative appearing for the department has, however, supported the impugned order and submitted that since the controversy involved in this appeal stands covered by the decision of the Tribunal in Ilishan Biotech, the appellant is not justified in asserting that the benefit of the Exemption Notification should have been provided to the appellant. Learned authorized representative also submitted that the extended period of limitation was correctly invoked in the facts and circumstances of the case. 13. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 14. The first issue that arises for consideration in this appeal is whether the ELISA test kits importe....
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....nctions based upon a measurable or observable change in the biological or chemical substances constituting the reagents. Prepared diagnostic reagents of this heading may be similar in function to those designed to be administered to patients (subheading 3006.30) with the exception that they are used for in vitra, rather than for in vivo, applications. Prepared laboratory reagents include not only diagnostic reagents but also other analytical reagents used for purposes other than detection or diagnosis. Prepared diagnostic and laboratory reagents may be used in medical, veterinary, scientific or industrial laboratories, in hospitals, in industry, in the field or, in some cases, in the home." 17.1 What appears from the above Notes is that such reagents are used in the evaluation of physical, biological or biochemical processes and states in animals and humans, of the nature of prepared diagnostic reagents that are to be administered to patients in vivo applications. In other words, the reagents or kits which are for the purpose other than for diagnostic purposes on human and animals are not covered within the meaning of diagnostic kits or diagnostic reagents on a backing, i.e, kit....
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.... same is dismissed." (emphasis supplied) 15. We have carefully perused the aforesaid decision of the Tribunal and see no good reason to take a different view. It has, therefore, to be held that the ELISA test kits imported by the appellant for testing food products would not be entitled to the benefit of the Exemption Notification. 16. Learned counsel for the appellant has also pointed out that apart from importing ELISA test kits for food testing, the appellant had also ELISA test kits for veterinary purposes, and, therefore, this Tribunal should examine whether the ELISA test kits for veterinary purpose would be entitled for exemption or not. 17. It is seen that neither in the reply sent by the appellant to the show cause notice, (even though this reply was not considered by the Principal Commissioner) nor in this appeal, the appellant has stated that it had also imported ELISA test kits for veterinary purpose. In this view of the matter, it would not be appropriate to examine whether the appellant had imported test kits for veterinary purpose which issue has been raised by the learned counsel for the appellant during the course of hearing of the appeal. 18. The issue w....
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....to 20.09.2020 amounting to Rs. 2 customs Act, 1962. 2,18,88,441/- under Section 28(2) of the Customs Act, 1962. (emphasis supplied) 20. However, in the present appeal a finding has been recorded in paragraph 28.1 of the order reproduced above that the extended period of limitation was correctly invoked. 21. The appellant may not have filed any reply to the show cause notice, but it was obligatory on the part of the Principal Commissioner to have examined whether the averments made in the show cause notice make out a case for invoking the extended period of limitation. The appellant had clearly indicated in the Bills of Entry that the goods were diagnostic kits and in some of the Bills of Entry that these ELISA test kits were for food testing. This aspect was also noticed by the Principal Commissioner in the earlier order passed which was assailed in Ilishan Biotech. The appellant may or may not have been entitled for the benefit of the Exemption Notification, but what was required to be examined was whether the appellant had suppressed material facts with an intent to evade payment of customs duty. Once a finding was recorded on the same set of facts by the Principal Commissi....