1997 (1) TMI 220 - AT - Customs

Summary

Issues Involved:
1. Legality of the import of Poppy Seeds.
2. Valuation of the imported Poppy Seeds.
3. Allegations of fraudulent importation.
4. Confiscation and penalties imposed.

Issue-wise Detailed Analysis:

1. Legality of the Import:

The primary issue was whether Poppy Seeds could be classified as "Diabetic Food" and thereby imported freely under the Open General License (OGL). The Commissioner had rejected the appellants' contention that Poppy Seeds were "Diabetic Food," placing the burden of proof on the importer. The appellants relied on various documents to support their claim, including letters from Ayurvedic and Unani authorities, opinions from researchers, and certificates from experts. However, the Tribunal found these documents insufficient. The Tribunal emphasized that for an item to be classified as "Diabetic Food," it must contribute to the prevention, control, or cure of diabetes, which the provided evidence did not establish. Therefore, the Tribunal upheld the Commissioner's decision that Poppy Seeds are consumer goods requiring a specific license for import, which the importer did not possess, resulting in a violation of the Import Policy.

2. Valuation of the Imported Poppy Seeds:

The declared value of the Poppy Seeds was US $0.30 per kg CIF, which the Commissioner contested as grossly undervalued. The show cause notice proposed valuation based on contemporary wholesale prices, suggesting Rs. 39 per kg. The Commissioner ultimately relied on an alleged admission in the reply to the show cause notice and an import at Bombay valuing the seeds at Rs. 13 per kg CIF. The Tribunal found that the Commissioner did not provide sufficient evidence to support the misdeclaration of value or the correct value. The Tribunal set aside the finding of misdeclaration and the determination of value in the impugned order, directing that the declared value should be accepted and duty assessed accordingly.

3. Allegations of Fraudulent Importation:

The show cause notice and the impugned order alleged that Shri Sanjay Kapoor had fraudulently and unauthorizedly imported the goods in the name of SAP without the knowledge and consent of its proprietor, Shri Ram Kirpal. This finding was not challenged during the arguments, indicating acceptance of the fraudulent importation by Shri Sanjay Kapoor.

4. Confiscation and Penalties Imposed:

The Commissioner ordered confiscation under clauses (d) and (m) of Section 111 of the Customs Act, 1962. The Tribunal upheld the confiscation under clause (d) due to the violation of the Import Policy but set aside the confiscation under clause (m) due to the lack of evidence for misdeclaration of value. The Tribunal also found that the basis for quantifying the redemption fine of Rs. 50 lakhs was not indicated by the Commissioner and required fresh quantification. The penalty of Rs. 1000 imposed on Shri Ram Kirpal was confirmed, while the penalty of Rs. 10 lakhs on Shri Sanjay Kapoor was set aside for fresh quantification after determining the assessable value.

Conclusion:

The Tribunal confirmed the confiscation under Section 111(d) and set aside the confiscation under Section 111(m). It set aside the quantification of the redemption fine and the penalty imposed on Shri Sanjay Kapoor, directing the jurisdictional adjudicating authority to re-quantify these amounts and determine the assessable value based on the declared value. The penalty on Shri Ram Kirpal was confirmed. The appeals were allowed, and the cases were remanded for fresh adjudication.