9911796707
TMI Blog1997 (1) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... s on Shri Sanjay Kapoor, partner of M/s. Sree Viswanath and Sons, Delhi (appellant in C/199/96-A ) and of Rs. 1000/- on Sri Ram Kirpal, proprietor of M/s. Sunder Brej Ayurvedic Pharmacy, Meerut (appellant in C/97/96-A (for short, SAP) under Section 112(a) of the Act. This order is challenged in both the appeals. 2. Subject matter of the appeals is import from Pakistan of 151.060 tons of Poppy Seeds or Khas Khas of Pakistan origin, at CFS, Adalaj for which seven Bills of Entry dated 10-10-1995, 8-11-1995 and 12-1-1996 were filed by M/s. Jaswant B. Shah, Ahmedabad, Custom House Agent of the importer, SAP. Clearance was sought under OGL on the ground that the goods are Diabetic Food in terms of serial number 55 of the list of consumer goods allowed to be imported freely under Para 156 of the 1992-97 Policy. As the goods appeared to be grossly undervalued, in the absence of value of identical or similar goods being available, valuation was proposed to be done by deduction method under Rule 7 of the Central Excise Valuation Rules, 1975 taking the wholesale price of the goods in India. The Custom House was of the prima facie opinion that goods were not Diabetic Food and being consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt and also after the filing of the appeal. (a) At page 238 of the paper book is copy of an unsigned letter of SAF to the Director, Ayurvedic and Unani Sewa Sanstha, Lucknow soliciting information about the use of poppy seeds in the treatment of Diabetics. At page 239 is the reply stating that poppy seeds can be used as food by Diabetic patients. This opinion is worthless as every item of food which can be used by such patients cannot be regarded as Diabetic Food . Any item of food to be regarded as Diabetic Food must contribute to prevention, control or cure of the disease. The opinion expressed falls far short of the requirement. (b) At page 240 is a copy of another unsigned letter dated 23-5-1996 of SAF to the Director, Central Council for Research in Unani Medicine, New Delhi seeking opinion about the use of Poppy Seeds for the treatment of Diabetics in the Unani system as one of the ingredients of nutritious food. At page 169 is the copy of the reply dated 28-6-1995 sent by the Senior Research Officer (Unani) of the Council stating that poppy seeds have frequently been mentioned for treatment of Diabetics in various unani formulations as one of the ingredients and since P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of extracts from the books are before us . Translations have been rendered. According to these two Hakims, certain juices prepared out of poppy seeds and other substances can be used in the treatment of Diabetics. This is not sufficient to show that poppy seed is Diabetic food. The expertise and competency of the author of the book has not been established. No attempt is made to show that these books are standard or authoritative works on Unani system. (e) Reliance is placed on certificate dated 9-4-1996 issued by Dr. Rajesh Kumar Sharma possessing M.Sc. and Ph.D. (Botany) qualifications. According to him Poppy Seeds are very nutritious and rich in proteins (21.5 to 23.5%), oil (about 46 to 49%), carbohydrates, vitamins, minerals, amino-acids etc. Poppy seeds have linoleic acid which has blood cholestrol lowering property and reduces Atherosclerosis, Arterial thrombosis, systolic and diastolic blood pressure and controls the progression of diabetic retinopathy, detoxifies carcinogens (cancer causing compounds). The certificate also refers to experiments conducted by Ahmed and Shaikh on rats which showed that blood glucose level came down within three hours after administering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... data and the reasons. Expert opinion which does not disclose such data and reasons cannot have any value. 7. Thus it is seen that the documents relied on by appellant are not sufficient to show that Poppy Seed is Diabetic food, though the documents suggest that Poppy Seed is an ingredient of medicine for treatment of Diabetics in the Unani system. The Commissioner referred to several books on Diabetics projecting the allopathic point of view. The books explain that in a diabetic, due to inadequacy of insulin, there is non-utilisation of sugar by the tissues and the body is starved of glucose and other food constituents are also not utilised properly. The load on pancreas must be relieved through a diet which can maintain health. The books enumerate dos and don ts for diabetic patients. Diet is an essential part of treatment. It requires specified calories of proteins, carbohydrates, fibres, vitamins and minerals. The relevance of these books lies in that they do not refer to poppy seeds as Diabetic food. But this cannot be decisive since according to appellant, Poppy Seed is Diabetic food according to Unani system of medicine. One of the books referred to by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wider definition and the specific inclusion of turmeric in the 1944 Order. In the wider context, spices and condiments would be food or foodstuff. The wider definition referred to is that which is taken into the system to maintain life and growth and to supply waste of tissue or as nutritive material absorbed or taken in the body of an organism which serves for purposes of growth, work or refrain and for maintenance of vital processes. we are concerned in this case, not with words food or foodstuff but with the words Diabetic food". The word food in Diabetic food must take its colour from the context as food recommended or prescribed for diabetic patients. We have already indicated that such evidence is lacking. 9. The other decision relied on is that of the High Court of Calcutta in Nathuni Lal Gupta and Others v. The State of West Bengal and Others - AIR 1964 Calcutta 279. The decision was rendered in a writ petition challenging criminal case launched under Defence of India Rules, 1962. The charge against the accused was that they squatted outside the main gate and rear entrance of a flour mill preparing wheat products. It was held that wheat and wheat products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Seeds. The same value cannot be adopted for the goods which belong to Grade II. The Collector also placed reliance on invoice dated 6-1-1996 relating to import of Poppy Seeds of Pakistan origin by M/s. M.B. Pharma, Amritsar at Rs. 13 per kg. CIF at Bombay. This allegation was not made in the show cause notice. Copies of the relevant documents were not available to apellants. The quality and grade of Poppy Seeds covered by invoice dated 6-1-1996 have not been adverted to in the order. The Collector did not marshal any evidence to prove misdeclaration of value or the correct value. The finding of misdeclaration and determination of value in the impugned order are not sustainable and are set aside. The declared value has to be accepted and duty assessed accordingly. 12. The show cause notice alleged and the allegation has been confirmed in the impugned order that the import was made really by Shri Sanjay Kapoor using the name of the concern belonging to Shri Ram Kirpal and it was Shri Sanjay Kapoor who attempted to clear the goods without licence. This finding has not been challenged in the course of arguments. What is challenged is only the quantification of redemption fine and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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