2017 (10) TMI 41 - HC - Customs

Export of non- Basmati rice - Prohibited item - Section 113 (d) and (i) of the Customs Act, 1962 - whether the test report of the RAL can form the legal basis for determining whether the consignment sought to be exported by the Respondent conformed with the standards prescribed by the DGFT for basmati rice? - Held that - the consistent policy of the central government was to allow export of PUSA 1121 although it was a non-basmati variety. Some confusion arose from the reference to PUSA 1121 as Basmati Rice , by inserting the word basmati either as a prefix or as a suffix to PUSA 1121. If indeed PUSA 1121 was basmati rice then clearly its export was never prohibited. However, it does appear that at one stage it was decided to call the said variety of rice PUSA Basmati 1121 and specify a slight change in grain length as explained in para 7 of the affidavit filed by DDGFT. In the circumstances, as long as the consignment of PUSA 1121 sought to be exported by the Respondent satisfied the said grain length parameters, which it in fact did, the Respondent ought to be given the benefit of doubt even if the description of the variety was shown as PUSA Basmati 1121. Confiscation set aside - appeal dismissed - decided against Revenue.

Summary

Issues Involved:
1. Legality of the test report from the Regional Agmark Laboratory (RAL).
2. Compliance with the standards prescribed by the Director General of Foreign Trade (DGFT) for basmati rice.
3. Interpretation of DGFT notifications regarding the export of PUSA 1121 rice.
4. Validity of the confiscation of the consignment by the Customs Department.
5. Review of the previous court order dated 25th August 2015.

Issue-wise Detailed Analysis:

1. Legality of the Test Report from the Regional Agmark Laboratory (RAL):
The central issue before the Court was whether the test report of the RAL could form the legal basis for determining whether the consignment sought to be exported by the Respondent conformed with the standards prescribed by the DGFT for basmati rice. The test reports indicated that the percentage of other rice in the consignment exceeded 20%, which was the maximum allowed under the Basmati Rules. The Court noted that the attention of the CESTAT was not drawn to the DGFT’s circular dated 30th September 2008, which was produced by the Customs Department.

2. Compliance with the Standards Prescribed by the DGFT for Basmati Rice:
The Respondent argued that the samples conformed to the requirements of length and breadth as per the DGFT notification dated 5th November 2008. The Court observed that the export licence referred to the commodity as 'Basmati Parboiled 158248' and that the samples had to conform not only to the DGFT’s notification but also to the Basmati Rice Rules. The Court concluded that the RAL report should bind the Respondent, agreeing with the Department that the Respondent had attempted to export non-basmati rice, thereby inviting action under Section 113 (d) and (i) of the Customs Act, 1962.

3. Interpretation of DGFT Notifications Regarding the Export of PUSA 1121 Rice:
The Review Petitioner contended that PUSA 1121 was initially acknowledged as a non-basmati variety and that the nomenclature 'Pusa Basmati 1121' led to confusion. The Court sought the views of the Department of Commerce on this matter. An affidavit from the Deputy Director General of Foreign Trade (DDGFT) clarified that PUSA 1121 was permitted for export as basmati rice with specific grain length parameters. The affidavit further explained the consistent policy of the central government to allow the export of PUSA 1121, despite it being a non-basmati variety.

4. Validity of the Confiscation of the Consignment by the Customs Department:
The Court noted that the confiscation of the consignment, as per the impugned order of the CESTAT, had been lifted, and the consignment was released to the Respondent. Given the time elapsed, the Court opined that re-examining the matter would serve no purpose.

5. Review of the Previous Court Order Dated 25th August 2015:
The Court allowed the review petition, recalling its order dated 25th August 2015, and restored the appeal. The affidavit filed by the DDGFT provided new facts that were not available when the original order was passed, significantly impacting the issue involved in the appeal. The Court concluded that the impugned order of the CESTAT did not warrant interference and dismissed the appeal with no orders as to costs.

Conclusion:
The Court dismissed the appeal, noting that the consistent government policy allowed the export of PUSA 1121 rice and that the Respondent's consignment met the required grain length parameters. The confiscation of the consignment was lifted, and given the time elapsed, re-examining the matter was deemed unnecessary. The impugned order of the CESTAT was upheld.