9911796707
TMI Blog2010 (12) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... athiba Singh and Ms. Surbhi Mehta, Advocates. Through: Mr. Mukesh Anand with Mr. Shailesh Tiwari, Advocates for R-1. Mr. Ravinder Agarwal, CGSC with Mr. Nitesh Gupta, Advocates O R D E R 1. The Petitioner seeks release of goods imported by it which, according to the Petitioner, have been illegally detained by the Respondents. 2. The Petitioner is a partnership firm engaged in importing citric acid monohydrate ( CAM) from a Chinese supplier since 2008. The imports have been allowed by the Commissioner of Customs, Respondent No.1, upon the Petitioner furnishing the requisite documents. The Petitioner sells CAM in the retail market and the invoices of the Petitioner contain the endorsement "not for medicinal use." The Petitioner holds a licence under Form 21-B and 20-B under the Drugs and Cosmetics Act, 1940 ( DCA) for sale or distribution by wholesale. The Petitioner states that CAM is a versatile industrial chemical which has several uses and in particular for cleaning industrial vessels, dissolving rust, water stains from glass etc. It is reiterated that CAM imported by the Petitioner is for non-medicinal uses. Accordingly, it is submitted that the said import does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. 5. Worried about the accumulation of demurrage charges on the imported goods lying at the warehouse, the present petition was filed by the Petitioner seeking quashing of the decisions dated 30th July 2010, 2nd August 2010 of the Customs Department, Respondent No. 1 and those dated 23rd August 2010 and 20th September 2010 by the Respondent No. 2. 6. While directing notice to issue in this writ petition on 8th October 2010, this Court directed that it would be open to the Petitioner to provide to the Respondents the list of the purchasers who will use the imported goods. Thereafter on 21st October 2010, this Court permitted the Petitioner to clear the imported goods subject to the condition that the imported goods were kept in a secure place under the direct supervision of Department of Customs. The Petitioner informed the Court on 23rd November 2010 that on the insistence of the Customs Department, the Petitioner was required to furnish a bank guarantee and a bond, which it did under protest. This Court then passed an order leaving it open to the Petitioner to seek appropriate remedies in accordance with law for the loss, if any, suffered by the Petitioner on account of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 13th December 2005, imported drugs having a dual purpose for use as a raw material in the manufacture of other drugs, required an application to be made to CDSCO, Headquarter, where a case-to-case examination would be undertaken. After due scrutiny, permission to import dual purpose drugs would be granted. It is submitted that in this case, the Petitioner submitted an application after the import was made and, therefore, this was contrary to the procedure outlined in the Circular dated 13th December 2005. 12. Secondly, Mr. Agarwal submitted that a self certificate by the importer in terms of Rule 43 of the DCR may not be sufficient. The invoices produced by the Petitioner showed that sales of CAM imported were made to retailers. It is submitted that although such retailer may not himself be a manufacturer of drugs, he may in turn sell the CAM to a manufacturer of drugs. It is submitted that the Petitioner would therefore not be in a position to issue a certificate about non-use of the imported goods for medicinal purposes. 13. The above submissions have been considered. 14. It is significant that in the communication dated 23rd August 2010 addressed to the Assistant Drug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not possible for the Respondent to insist on any other certification by the Petitioner beyond what is required by Rule 43 or Rule 123 DCR. The Petitioner cannot be expected to ensure that the retailer to whom the Petitioner sells the imported CAM does not in turn sell it to a person who might use it for medicinal purposes. It is for the Respondents to ensure enforcement of the law to prevent any violation. 16. This Court takes on record the statement made by the learned Senior counsel for the Petitioner, on instructions, that the Petitioner will furnish within one week an affidavit to the Respondents undertaking that the Petitioner will supply to the Respondents a complete list of the purchasers of the CAM imported by it under the consignments in question. It would be open to the Respondents to undertake a surprise check of the premises of the purchasers as disclosed by the Petitioner. If the Respondents find that such purchasers have sold the consignment to a manufacturer of drugs or a person who is likely to use such goods for medicinal purposes, the Respondents will proceed to take action in accordance with law. 17. For the aforementioned reasons, this Court sets aside th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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