TaxTMI 
TaxTMI 
2026 (3) TMI 452
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.... clearance, would suffer an embargo for a re-export and proceedings for confiscation under the provisions of Section 111 of the Customs Act, 1962 (for short "Customs Act"). 2. The relevant facts are required to be noted : The petitioner is stated to be engaged in the import and trading of cosmetics (perfumes, glow and lovely cream, Taft Hairspray, toothpaste, shampoo, conditioner, shower gel, luxury perfumes etc.) and FMCG (Fast Moving Consumer Goods). In the month of November, 2025, the petitioner imported three consignments of cosmetics and FMCG. It filed Warehousing Bills of Entry qua these consignments, in November, 2025. 3. It is the petitioner's case that these goods were never intended to be cleared for home consumption, for the reason that as for home consumption, a regulatory approval was necessary, of the petitioner requiring a Central Drugs Standard Control Organization (CDSCO) license. The petitioner had applied for such license on 5 May, 2025 with the Competent Authority under the Drugs and Cosmetics Act, 1940. Admittedly the petitioner has not been granted the CDSCO licence qua the goods in question. This is also not the case of the petitioner that the goods in ....
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....t the goods. 7. As the goods were not permitted to be re-exported and kept under seizure, the petitioner made a representation to respondent no. 2 for grant of an NOC for allowing re-export. However, no action was taken on the said representation. It is in these circumstances, the present petition has been filed praying for the following substantive reliefs: "a) That this Hon'ble Court be pleased to issue a Writ of Certiorari or any other writ, order or direction under the Article 226 of the Constitution of India calling for the records pertaining to the petitioners' case and after going into the validity and legality thereof, to quash and set aside the impugned seizure memo dated 26.11.2025 (marked and annexed as Exhibit-A) under Section 110 of the Customs Act, 1962 issued by respondent no. 2 - the Directorate of Revenue Intelligence, Nhava Sheva-I, Mumbai Zonal Unit in F.No. DRI/MZU/NS-I/INT-178/ENQ-68/2025." 8. Dr. Kantawala, learned counsel for the petitioner has made extensive submissions. He submits that the imports in question, which are for re-export was bona fide, hence any alleged licensing discrepancy was purely regulatory and would not warrant seizure and....
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....under any Bills of Entry for home consumption, as the goods were intended to be re-exported. It is also his contention that on a totally untenable premise and on the basis of such valuation as undertaken by the Chartered Engineer, the goods subject matter of three Bills of Entry are being valued at Rs. 2,04,95,700/- Rs. 3,78,59,012/- and Rs. 4,26,39,507/- respectively totalling to Rs. 10,09,94,219/-, being seized under a reasonable belief that they were liable to confiscation under the provisions of Section 111(d), 111(l) and 111(m) of the Customs Act, when the actual valuation of the goods was much lesser as set out in the Bills of Entry presented for warehousing. 11. Insofar as the valuation by the Chartered Engineer is concerned, Dr. Kantawala has submitted that the Chartered Engineer is not a competent expert to value the nature of the goods which are cosmetics and FMCG and more particularly Notice No. 16/2024 dated 23 February, 2024 whereby the Office of the Commissioner of Customs had invited applications for empanelment of Chartered Engineers for examination/valuation of second/old & used machinery/goods etc. in the jurisdiction of Jawaharlal Nehru Custom House. It is his....
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....titioner were clearly to circumvent the mandatory compliances as required under the Drugs and Cosmetics Act, 1940 and Cosmetics Rules 2020 whereunder, no import of cosmetics was allowed without prior CDSCO licence. In such context, reference is made to the provisions of Section 2 of the Customs Act and more particularly to the definition of "assessment" [Section 2(2)], "import" [Section 2(23)]; "importer" [Section 2(26)]; "imported goods" [Section 2(25)], and the definition of "India" [Section 2(27)]. Also reliance is placed on the provisions of Section 46(1), 46(4A)(c) of the Customs Act and the provisions of the Foreign Trade Policy, 2023 to contend that there is no distinction between home consumption Bills of Entry and Warehouse Bills of Entry filed under Section 46 of the Customs Act. It is contended that the warehouse Bills of Entry are required to be self assessed by the importer under Section 17 of the Customs Act, and are akin to the Bills of Entry for home consumption. It is next contended that considering the fact that the petitioner did not possess the CDSCO licence, the goods were prohibited goods as per Section 2(33) of the Customs Act. The relevant extracts of the re....
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....icable shall be paid at the time of clearance of such goods. (c) The clearance of the warehoused goods shall be as per the provisions of the Customs Act, 1962. It is submitted that, the Foreign Trade Policy categorically denies warehousing of prohibited items. In the instant case, the goods imported by the petitioner are prohibited/restricted goods as they have not been imported in tandem with the provisions of the Foreign Trade Policy, 2023 and thus, violated the same. Further, the goods in the three (03) consignments were mis-declared in terms of value and non-compliance of regulatory requirements of CDSCO registrations. Thus, from the above discussions, it is ample clear that Bill of Entry filed either for Home consumption or for Warehouse purpose, regulatory compliances are mandatory. In the instant case, non-availability of CDSCO licenses for imported goods make them prohibited. Furthermore, there is also mis-declaration in term of value. 17. It is submitted that, the petitioner had knowingly and deliberately filed the warehouse Bills of Entry after coming to have the knowledge and information that, the goods belonging to the same supplier i....
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.... These offences cannot be regularized by simply allowing them to re-export when blatant violation of Customs Act, Foreign Trade Policy, Drugs and Cosmetics Rules have already been brought on record. The subject goods falls under the prohibited category and is still under investigation. Further, the petitioner has deliberately avoided to join the investigation inspite of giving numerous opportunities. Furthermore, there have been import clearances effected of similar goods done deliberately from another port, the fact which was hidden from the DRI and not disclosed till date. Hence, it is humbly submitted that the plea of the petitioner should not be entertained and they should be directed to join the investigation forthwith." (emphasis supplied) 15. Having noted the relevant contents in the reply affidavit filed on behalf of the respondents, a comparison of the value of goods as per the report submitted by the government approved valuer vis-a-vis the valuation declared by the petitioner [IEC holder/Importer] is as under: Sr.No. Container No. Date of Examination Value declared in BE(Rs.) Valuation given by the CE (Rs.) 1 FSCU9875276 12.11.2025....
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.... All cosmetic products that are imported for sale in India need to be registered with the licensing authority as defined under Rule 21 of the Drugs & Cosmetics Rules, 1945. It is restricted under Import Policy inasmuch as, it is mandatory to obtain registration certificate from the Central Drugs Standard Control Organization (CDSCO) under the Cosmetic Rules, 2020. Thus, without the said registration certificate, the import is violative of the provisions of Customs Act, 1962 and Foreign Trade Policy and is accordingly prohibited. (emphasis supplied) 18. It is next contended by the respondents that the investigation revealed quite peculiar facts and more particularly from the statements of Mr. Amit Dhanuka as recorded under Section 108 of the Customs Act on 2 December, 2025, wherein, he stated that he had gone to Dubai, [U.A.E.] and had got a job in a shop belonging to Sterling Perfumes Industries LLC at Deira, Dubai, U.A.E. He stated that he was looking after the sales in the said shop till the year 2019. He stated that he came back to Kolkata and started a business of selling of mobile accessories at Kolkata. He stated that he started Glamstone Cosmetics Pvt. Ltd. [petitioner....
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....tone Cosmetics Pvt. Ltd., as being an ex-employee, on the goodwill, goods given to him with the condition that, after sale of the goods, the monies to be transferred to the supplier. (emphasis supplied) 19. There is also a statement recorded of Shri. Roshan Dalvi, Executive (Documentation), Cesta Shipping Pvt. Ltd. as also a statement of Shri. Nasir Hussain, Trade Manager, Aahil Shipping and Logistics Pvt. Ltd.-Navigo India Maritime Pvt. Ltd. (shipping line) who have stated that the Import General Manifest (IGM) was filed by them through their port handling agent namely United Brothers Shipping Pvt. Ltd. A statement of Shri. Suhas Kashinath Palkar, Senior Executive of United Brother Shipping Services Pvt. Ltd. was also recorded. 20. On the basis of such statements, it is contended in the reply affidavit that Shri. Amit Dhanuka, Director of the petitioner revealed that he was earlier working in a shop at Dubai belonging to the supplier of the goods till the year 2019 and the other Director was visiting the suppliers' shop for purchase of cosmetics. It was revealed that they did not have any purchase orders and this was their first import consignment. He has also stated that....
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....ulative, scheming and an after-thought in order to circumvent the mandatory compliances as required under the Drugs and Cosmetics Act and the Cosmetics Rules, 2020, intended to scuttle the investigation. The relevant averments in that regard are required to be noted which read thus: "29. Petitioner has contended that, the intent was to re-export the goods hence, the seizure is totally illegal and unwarranted. The petitioner had imported the three (03) consignments viz. declaring them as 'assorted Toiletries' for which they have filed warehouse Bills of Entry. In the instant case, the petitioner had knowingly and deliberately filed the warehouse Bills of Entry after coming to have the knowledge and information that, the goods belonging to the same supplier shipped through the same shipper, imported into India by an another IEC holder/Importer was kept on hold by the DRI, which also contained similar goods. The same was subsequently seized as they are liable for confiscation for violation of Customs Act, 1962, Drugs and Cosmetics Rules and Foreign Trade Policy and is under investigation. Thus, the act of the petitioner in the instant case was nothing but a very calculative, ....
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....ptions by providing an indicative assessment. The allegations are totally denied. It is submitted that, as far as the valuation of the goods are concerned, the same were obtained from a registered Chartered Engineer/Government Valuer. The Chartered Engineer/Government Valuer on physical inspection and visual verification had given the valuation of the impugned goods stuffed in the containers to the tune of Rs. 10.10 crore [Rupees Ten Crore and Ten Lakh Only]. Accordingly, the said impugned goods were seized under the provisions of Section 110 of the Customs Act, 1962 under the reasonable belief that they are liable for confiscation under Section 111 of the Customs Act, 1962. Thus, the allegation on the part of the petitioner that, seizure is founded primarily on alleged undervaluation is incorrect and false as there are other reasons also which is a matter of investigation. However, the petitioner is deliberately not co-operating in the investigation." (emphasis supplied) 24. Mr. Mishra, learned Counsel for the Respondents, referring to the aforesaid case of the respondents in the reply affidavit, has accordingly submitted that the petition would not warrant interference and ....
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....their importation and the time when they are cleared for home consumption, includes any owner, beneficial owner] or any person holding himself out to be the importer; (27) "India" includes the territorial waters of India; (28) "Indian Customs Waters" means the waters extending into the sea up to the limit of Exclusive Economic zone under Section 7 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (80 of 1976), and includes any bay, gulf, harbour, creek or tidal river; .... ... ... ... (33) "prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with;" 28. The substantive provisions as referred and relied on behalf of the parties are the provisions of Section 11 of the Customs Act which provide for 'Power to prohibit importation or exportation of goods.' Chapter IVA dealing with the provisions for 'Detection of Illegally Imported Goods An....
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....e goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under section 57 without warehousing the same. (2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor. (3) The importer shall present the bill of entry under sub-section (1) before the end of the next day following the day (excluding holidays) on which the aircraft or vessel or vehicle carrying the goods arrives at a customs station at which such goods are to be cleared for home consumption or warehousing: Provided that a bill of entry may be presented at any time not exceeding thirty days prior to the expected arrival of the aircraft or vessel or vehicle by which the goods have been shipped for importation into India: Provided further that where the bill of entry is not presented within the time so specified and the proper officer is satisfied ....
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....b-section (1), from such due date as may be specified by rules made in this behalf, and if he fails to pay the duty within the time so specified, he shall pay interest on the duty not paid or short-paid till the date of its payment, at such rate, not less than ten per cent. but not exceeding thirty-six per cent. per annum, as may be fixed by the Central Government, by notification in the Official Gazette. Provided that the Central Government may, by notification in the Official Gazette, specify the class or classes of importers who shall pay such duty electronically: Provided further that] where the bill of entry is returned for payment of duty before the commencement of the Customs (Amendment) Act, 1991 (55 of 1991) and the importer has not paid such duty before such commencement, the date of return of such bill of entry to him shall be deemed to be the date of such commencement for the purpose of this section: Provided also that] if the Board is satisfied that it is necessary in the public interest so to do, it may, by order for reasons to be recorded, waive the whole or part of any interest payable under this section. ... ... ... . 49....
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....rnish such security as may be prescribed. (4) Any bond executed under this section by an importer in respect of any goods shall continue to be in force notwithstanding the transfer of the goods to another warehouse. (5) Where the whole of the goods or any part thereof are transferred to another person, the transferee shall execute a bond in the manner specified in sub-section (1) or sub-section (2) and furnish security as specified under sub-section (3). 69. Clearance of warehoused goods for export.-(1) Any warehoused goods may be exported to a place outside India without payment of import duty if- (a) a shipping bill or a bill of export or the form as prescribed under section 84 has been presented in respect of such goods; (b) the export duty, fine and penalties payable in respect of such goods have been paid; and] (c) an order for clearance of such goods for 9[export] has been made by the proper officer. Provided that the order referred to in clause (c) may also be made electronically through the customs automated system on the basis or risk evaluation through appropriate selection criteria. (2) Notwithstandi....
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....ced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic ; .. ... ... ... (g) "to import", with its grammatical variations and cognate expressions means to bring into India; 9C. Misbranded cosmetics.-For the purposes of this Chapter, a cosmetic shall be deemed to be misbranded- (a) if it contains a colour which is not prescribed; or (b) if it is not labelled in the prescribed manner; or (c) if the label or container or anything accompanying the cosmetic bears any statement which is false or misleading in any particular. 9D. Spurious cosmetics.-For the purposes of this Chapter, a cosmetic shall be deemed to be spurious,- (a) if it is imported under a name which belongs to another cosmetic; or (b) if it is an imitation of, or is a substitute for, another cosmetic or resembles another cosmetic in a manner likely to deceive or bears upon it or upon its label or container the name of another cosmetic, unless it is plainly and conspicuously marked....
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.... beings or animals or that any drug does not have the therapeutic value claimed for it or contains ingredients and in such quantity for which there is no therapeutic justification and that in the public interest it is necessary or expedient so to do then, that Government may, by notification in the Official Gazette, prohibit the import of such drug or cosmetic. 11. Application of law relating to sea customs and powers of Customs officers. (1) The law for the time being in force relating to sea customs and to goods, the import of which is prohibited by Section 18 of the Sea Customs Act, 187810 (18 of 1878) shall, subject to the provisions of section 13 of this Act, apply in respect of drugs and cosmetics the import of which is prohibited under this Chapter and officers of Customs and officers empowered under that Act to perform the duties imposed thereby on a Commissioner of Customs and other officers of Customs, shall have the same powers in respect of such drugs and cosmetics as they have for the time being in respect of such goods as aforesaid. (2) Without prejudice to the provisions of sub -section (1), the Commissioner of Customs or any officer of the....
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....censing Authority; and (ii) details of registered brand owner of the finished product in India; (5) The application for registration in accordance with sub-rule (2) shall be accompanied by a copy of the receipt of fee having been deposited as specified in Third Schedule. (6) The fee shall be such for each category of cosmetic along with each manufacturing site with additional fee for each category of cosmetic and variant specified in the Fourth Schedule. (7) Till such time, the online portal becomes operational for this purpose, offline application in Form COS-1 may be made either by the manufacturer himself or by his authorised agent or by the importer in India or by the subsidiary in India authorised by the manufacturer for registration of a cosmetic referred to in sub-rule (1). (8) The applicant shall be liable to pay testing fees directly to the testing Laboratory approved by the Central Government referred in rule 11, for examination, test and analysis of imported cosmetics in respect of cosmetics identified for such examination as specified in the Fifth Schedule. (9) The applicant shall pay the fee as specified in the Thir....
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....wo per cent, of the registration certificate retention fee for every month or part thereof within one hundred and eighty days and in the event of non-payment of such fee during that period, the registration certificate shall be deemed to have been cancelled. ... ... ... . 17. Import of cosmetics already registered for import.-(1) A cosmetic manufactured in a foreign site and already registered under rule 13 for import and sale in India, may be imported by any person or entity by making an application in online portal of the Central Government in Form COS-4 with an undertaking as specified in Sixth Schedule. (2) After examination of documents furnished with the application under sub-rule (1), the Central Licensing Authority may, on being satisfied, subject to the conditions, grant import registration number in Form COS-4A, or may reject such application for which reasons shall be recorded in writing within a period of six months from the date of application. (3) An import registration number granted under sub-rule (2) shall remain valid for a period of three years from the date of its issue, unless it is suspended or cancelled. (4) If the....
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....t if the importer gives an undertaking in writing not to dispose of the cosmetic without the consent of the Commissioner of Customs and to return the consignment or such portion thereof as may be required, the Commissioner of Customs may, make over the consignment to the importer. (4) If the importer who has given an undertaking under proviso to sub-rule (1) is required by the Commissioner of Customs to return the consignment or portion thereof, he shall return the consignment or portion thereof within ten days of receipt of the notice. (5) If the Director of the Laboratory established for the purpose by the Central Government or any other officer of the laboratory empowered by him in this behalf with the approval of the Central Government, reports to the Commissioner of Customs or to the officer mentioned in sub-rule (1) that the sample of any cosmetic in a consignment contravenes provisions of Chapter III of the Act or rules made thereunder and that the contravention is such that it cannot be remedied by the importer, the Commissioner of Customs shall communicate the report forthwith to the importer who shall within two months of receiving such communication eit....
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.... place outside India, prior to their clearance for home consumption. Thus, in the context of bringing of the goods into India as ordained by Section 2(23) and Section 2(25) (supra), Section 2(27) and Section 2(28) become relevant which means "the territorial waters of India" and the "Indian customs water" to inter alia mean waters extending into the sea, up to the limit of 'exclusive economic zone.....'. Further Section 2(33) when speaks about 'prohibited goods' it means any goods, the import or export of which is "subject to any prohibition" under the Act "or any other law for the time being in force". Also Section 11A(a) defines "illegal import" to mean the import of any goods in contravention of the provisions of the Act or "any other law for the time being in force". It is in the context of the said provisions, Chapter VII of the Customs Act which inter alia provide for clearance of imported goods are required to be considered in Section 46 provides for 'Entry of goods on importation.' 33. On a cumulative application of the provisions of the Customs Act (supra) read with the provisions of the Drugs and Cosmetics Act, 1940 and the Cosmetics Rule 2020, qua the goods in questio....
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.... the Cosmetics Act, no import of Cosmetics could have been undertaken by the petitioner without a licence, as rightly contended on behalf of the Respondent. Admittedly the goods in question were imported into India without a licence. This was not permissible, considering the conjoint effect of the aforesaid provisions. Thus, the provisions of Section 2(33) which define prohibited goods to inter alia mean any goods the import of which is subject to the prohibition either under the Customs Act or "any other law for the time being in force", stand breached and/or not complied thereby rendering the goods in question "prohibited goods". 37. Thus, the goods in question as imported by the petitioner being prohibited goods, the provisions of Section 110 of the Customs Act providing for seizure and the provision of Section 111 providing for confiscation of improperly imported goods, would stand attracted and applicable. This more particularly, clause (d) of Section 111 which provides that the goods would be liable for confiscation when goods which are imported or attempted to be imported or are brought within the Indian Customs Waters for the purpose of being imported, contrary to any pr....
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....his was to be the sole intention, the petitioner could not have applied for a CDSCO licence in May, 2025. The clear provisions of the Drugs and Cosmetics Act and the Cosmetics Rules 2020 as applicable to the imports of Cosmetics do not conceive a situation, that such goods can be brought into territorial waters merely for the purpose of warehousing and/or on that basis, that after the arrival of the goods, a license can be applied. This is totally unacceptable and in fact illegal. The provisions of law as discussed hereinabove do not permit that these goods can be brought into the Country only for the purpose of warehousing and that too contravening and/or circumventing the provisions of law. The consequence of such contentions as urged on behalf of the petitioner, would be to the effect that Indian territory permits prohibited goods to be brought into India, merely for the purpose of warehousing, on a specious consideration that warehousing is cheaper in India than in other countries, and therefore such unlicensed imports be permitted, for the goods to be ultimately re-exported. This would be too far fetched. We do not gather any such intention under any provisions of law as urged....
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....thorities and on payment of such Custom duty, the goods were cleared and used by the appellants. On such backdrop, the appellant filed Writ Petition before the High Court contending that landing charges which were paid at the rate of 3/4% of the CIF value of goods, were wrongly added while arriving at the assessable value of those goods and therefore, the authorities be directed by the High Court to refund Rs. 69,030.60 which was the amount of duty relatable to the landing charges. The High Court opined that the Customs Authorities had rightly added the landing charges to the CIF value of the goods for the purpose of determining the customs duty, hence, no refund was due to the appellants. It is in such context, the Court examined provisions of Section 12 and made the following observations as relied upon on behalf of the petitioner in paragraph 15 and 16: 15. The question as to whether the import is completed when the goods entered the territorial waters and it is the value at that point of time which is to be taken into consideration is no longer res integra. This contentions was raised in Union of India v. Apar Industries Limited -1999 (112) E.L.T. 3 (S.C) = 1999 (5) J.....
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....he present proceedings. 43. In the light of the above discussion, we are also not inclined to consider the petitioner's contention on the valuation report as submitted by the chartered engineer as appointed by the department to value the goods, as we do not intend to delve on such contentions at this stage in the present proceedings. Suffice it to observe that the valuation needs to be undertaken only by a person who is an expert, considering the nature of the goods. All contentions on such issue are accordingly kept open. 44. Considering the aforesaid discussion, we are in agreement with Mr. Mishra, when he places reliance on the decision of the Division Bench of the Madras High Court in ALM Enterprises Vs. Commissioner of Customs (Imports), Chennai 2017 (353) E.L.T. (Mad), in which the Court considering the provisions of the Rule 125 of the Drugs and Cosmetics Rules, 1945 [as applicable at the relevant time, now repealed by the Cosmetics Rules 2020], the Court reached to a similar conclusion applying the provisions of Rule 129, it was held that the import of Cosmetics without obtaining the Registration certificate (in form 43) was not a legal import. The relevant observatio....
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....d pack size(s) and vanants which may be imported under this Registration Certificate (1) (2) (3)" The import of cosmetics made without obtaining the Registration Certificate (Form 43) is in clear violation of the above provisions. Thus, every importer of cosmetics was required to comply with the above regulatory regime prescribed by the Drugs and Cosmetics (4th Amendment) Rules, 2010 The finding of fact recorded by the adjudicating Commissioner of Customs in the present case is that this legal regime has not been complied with by the importer ..... 39. In the instant case, it is recorded in Para 49 of the Order-in-Original that all cosmetic products Including air fresheners and other toiletries which are imported for sale in India need to be registered with the licensing authority as defined under Rule 21 of Drugs and Cosmetics Rules, 1945. In the instant case, the goods are found imported without obtaining the registration certificate from the Central Drug Standard Control Organization and therefore, it is found that the importer did not possess necessary permission/registration certificate from the competent authority under th....