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TMI Blog2013 (3) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner in W.P.No.14248 of 2011 is an importer of L-Leucine and L.Valine, which according to the writ petitioner are not for Pharma and drug use. In addition to that, the following items which are also stated to be used as Pharmaceuticals or drugs. S.No Name of Goods Covered under Bill of Entry No. Date of Bill of Entry 1 L-Leucine & L.Valine (not for pharma and drug use) 548872 24.06.2010 2 L-Creatine & L-Taurine (not for Pharmaceutical and drug use) 548873 24.06.2010 3 D-Calcium Pentothenate (not to use in drugs and medicine) 548874 24.06.2010 4 Suphadiazine (not for medical use) 548875 24.06.2010 Likewise, the petitioner in W.P.No.14535 of 2011 relates to importer of Siliybum which is stated to be Beverage Grade material not for medicinal use covered under the Bill of Entry No.548876 dated 24.06.2010. 4. As it is stated in W.A.No.1559 of 2011, the prayer is similar and the writ petitioners have not only prayed for quashing of the direction issued by the drug authorities for the production of Form 10 licence of the Act, but also for a direction to release the goods without imposing any condition. 5. The learned Judge by disagreeing with the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer. The officer considering the refund claim cannot also review an assessment order." 9. Insofar as the findings of the authorities, the respondents have challenged the impugned order in the above two writ petitions. In this case, it is not in dispute that while importing, the petitioners have complied with the requirements as per Rule 43 read with schedule D of the Drugs and Cosmetics Rule, 1945. The respondents have simply relied upon certain admissions stated to have been made by the drug authorities before the learned Single Judge in W.P.No.14248 of 2011 and 14535 of 2011 for the purpose of coming to a conclusion that the materials referred to are to be treated as drugs for human use. The impugned order also refers to a settlement arrived at before the Delhi High Court between the parties with certain conditions and it wholly depends upon the report of the Assistant Drug Controller, Chennai Port, the authority has come to the conclusion that the materials imported are intended for human use. The portion of the impugned order which is relevant is as follows: "29.The importer/importer's Advocate in his written submissions dated 26.07.2011 and during the PH conducted on 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent being based on the report of the Assistant Drug Controller, Chennai Port which report has been made with full prejudice without taking note of the appropriate provisions of the law inspite of the authority going on record before the Hon'ble High Courts on the correct position of law cannot be relied upon in evidence and that the end use of the drugs according to the importers is not for manufacture of drugs and as such they are willing to provide any kind of evidence to the satisfaction of the department to show that they are not used in the manufacture of drugs" 10. It is with that view in mind, the impugned order has been passed by categorizing that imported goods are to be treated as drugs, also which is to be also used for human purpose as medicine and inasmuch as Form 10 licence has not been obtained by the petitioners, the authorities had directed the petitioners to re-export the goods, apart from imposing penalty and fine in the order impugned. 11. As stated above, the legal position is very clear that inasmuch as under Rule 43 read with schedule D of the said Rules, the petitioners are entitled for exemptions and there is absolutely no question of asking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uture. The already imported consignment of citric acid to be released on compliance of above mentioned proposal by the importer. In the course of hearing, it has been further agreed that following conditions be incorporated in additional to the above suggestions: (a) At the time of sale by the seller, namely the respondents herein, they shall obtain a certificate/undertaking from the actual user/purchaser to the effect that the citric acid would not be used for medicinal purpose. (b) The actual user/purchaser shall also give an undertaking that he would not sell it to anyone who shall use it for medicinal purpose. (c) The undertaking shall be given in the format that shall be given by the Additional Drugs Controller. Needless to say, the format shall not travel beyond the settlement." 10. It is in view of the said settlement arrived at between the parties, the Division Bench of Delhi High Court, has set aside the learned Single Judge's order, however leaving open the legal issues. Such settlement arrived at between the parties cannot be a reason for the respondents to pass the impugned order, by-passing the statutory provisions and the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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