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TMI Blog2009 (9) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... d the goods and its value for clearance of the goods which is liable to auction under Section 111(m) of the Customs Act is also one specifically excluded from the scope and amplitude of Section 130-A of the Customs Act by stating that the order not being order relating to among other things to the determination of any question having relating to a rate of duty of customs or to the value of goods for the purpose of assessment, applicant cannot maintain reference case under Section 130-A of the Customs Act, petitions are dismissed - - - - - Dated:- 3-9-2009 - K. Raviraja Pandian and T. Raja, JJ. REPRESENTED BY : Shri T. Chandrasekaran, SPC, for the Petitioner. S/Shri A.K. Jayaraj, S. Murugappan and Ms. Sridevi, Counsels, for the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division of Horticulture Gandhi Krishi Vignana Kendra, Bangalore. The test report among other things revealed that (i) the samples analysed were found to be fresh (they were not subjected to mechanical drying); (ii) the natural water content inside the cloves/bulblets has not been removed by any mechanical process and (iii) the moisture content in the cloves of garlic was found to be in the range at 65 to 79 per cent. As per ITC (HS) EXIM Code No. 071290.04 garlic in order to be dry, is to be dehydrated or freeze dried to remove the water content. The Director General of Foreign Trade, the licensing authority, in their policy Circular No. 32 (RE), dated 17-9-1999 regarding import of dried garlic, has clarified that the moisture content shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the special licence has been produced before the clearance of the imported goods, then in such circumstances fine and penalty is not imposable. In the present case, since the percentage of water content of garlic imported was more than 60% they were treated as fresh garlic as against the declared description of dried garlic. The importer has misdeclared the goods as dried garlic and obtained import licence only when the department objected. The importers would have cleared the goods without any import licence circumventing the restriction on the import of the subject goods, if no objection was raised by the Department. Hence imposition of redemption fine and penalty for the misdeclaration of the goods is legally correct. The Order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. (4)............. 5. Here the first contention of the counsel for the petitioner that whether the imported goods is a dried garlic or a fresh garlic containing moisture over and above 60 per cent is a pure and simple question of fact and hence it would not come under the purview of reference under Section 130-A of the Customs Act. The other contention made by the learned counsel that the second respondent has misdeclared the goods and its value for clearance of the goods which is liable to auction under Section 111(m) of the Customs Act is also one specifically excluded from the scope and amplitude of Section 130-A of the Customs Act by stating that the order not being order relating to among other things to the determination of any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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