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TMI Blog2011 (9) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... tion - held that:- even assuming that this Tribunal can consider the vires of the Notification and a challenge can be made, we are of the opinion that the Notification does not suffer from any of the defects which can be a ground for challenge to the Notification. Restriction on import of Boric Acid - All the consignments were not allowed to be cleared on the ground that Appellants were not eligible to import the same since Boric Acid for non-insecticidal use can be allowed only on the basis of an import permit issued by Central Insecticide Board and Registration Committee (CIB and RC) under Ministry of Agriculture. - the Appellant being a trading concern was required mandatorily to register themselves and produce import permit, and since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d no submissions to make about facts of the case and the legal submissions in any case would be considered by us after hearing both sides, it was felt that there is no bar in allowing Miscellaneous Application since it would not have an impact on the ultimate decision that we may reach after hearing both sides. We found that the legal points made by the learned Counsel were relevant and in any case would come up during process of decision making in respect of the Appeal. 3. Learned Counsel on behalf of the Appellants submitted that Boric Acid is notified as an insecticide under the Insecticide Act, 1968 (1968 Act). According to Section 38 of the 1968 Act, 'any substance specified or included in the schedule or any preparation containing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewspapers Bombay (P) Ltd. - 1999 (110) E.L.T. 3(S.C.). He relied upon the observations of the Hon'ble Supreme Court that subordinate legislation can be questioned on the ground that it is contrary to some other statute because the subordinate legislation must yield to plenary legislation (Para 73). However, no decision has been cited before us to support the contention that the Tribunal can go into the vires of the Notification and whether the Notification issuing authority had the power or not. Therefore in our view this Tribunal can not go into the question of view of the Notification. 6. In this case the learned Counsel's submission is that issue of Notification under F.T.A. by D.G.F.T. itself was bad in law. One of the contentions was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the 1968 Act is that if Boric Acid is notified under the Act, it will be exempt if it is imported for other purposes. For the purposes of importation of Boric Acid, if it is an insecticide it is classifiable under C.T.A. 38 and if it is not an insecticide it comes under CTH 28. The decision in respect of conditions to be imposed for import of Boric Acid as an insecticide is taken by the nodal Ministry namely Ministry of Agriculture. Insecticides Act does not bar restrictions being imposed on import of goods which are not covered by the Insecticides Act. The exemption is from the restrictions and provisions of 1968 Act and not from the import restrictions or other conditions that may be imposed by the Government under other enactments. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned above. On the ground that the Appellant being a trading concern was required mandatorily to register themselves and produce import permit, and since they had not produced the same, the imported Boric Acid was confiscated and penalty was also imposed. 9. Learned Counsel made detailed submissions on behalf of the Appellants. Learned D.R. on behalf of the Revenue brought to our notice that the Tribunal in the case of Jaysun Enterprise v. Commissioner of Customs (Imports), Raigad - 2009 (238) E.L.T. 373(Tri.- Mumbai) considered the very same issue and decided that import permit was required and therefore confiscation was in order. In that case the Appellants had produced a certificate subsequently and therefore redemption fine was reduce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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