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TMI Blog2013 (9) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... wing alcoholic content which appears to have been not present - Labeling of ingredient list was also classified as a non-rectifiable defect. Assessee would have to comply with a number of conditions like providing details to comply with the local laws, at the time of the re-packing and the re-labeling of the said goods, in the customs bonded area, and goods to be subjected to necessary tests to make sure that the goods in question are fit for human consumption, before release of goods - The order of Commissioner (Appeal) was set aside - the matter was restored to the adjudicating authority - the time limit for re-export of goods was extended - Decided in favour of Assesse. - Appeal No.C/40192/2013 - FINAL ORDER No.40356/2013 - Dated:- 6-9-2013 - Shri Mathew John, J. For the Appellant: Shri K.S.V.V. Prasad, JC (AR) For the Respondent: Shri S. Krishnanandh, Advocate JUDGEMENT 1. The respondent filed Bill of Entry No.4219611 dt. 29.7.2011 at Chennai Custom House for clearance of imported goods declared as White Wine, Red Wine, Extra Virgin Olive Oil JJ and Extra Virgin Olive Oil MR imported from their overseas supplier M/s. Morais Rocha, Portugal. In view of CBE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant under section 112 (a) of the Customs Act. On adjudication, the entire consignment imported vide Bill of Entry No.4219611 dt. 29.7.2011 was held to be misbranded as per section 3 (zf) (i) (b) of the Food Safety and Standards Act, 2006 and therefore prohibited for importation into India as per Section 25 (i) of the said Act. The said goods valued at Rs.7,79,072/- was confiscated under section 111 (d) of the Customs Act, 1962. Option was given to the importer to redeem the goods on payment of a redemption fine of Rs.10,000/- under section 125 of the Customs Act for the purpose of re-export only. The option was to be exercised within 60 days of receipt of the order. Further, penalty of Rs.5000/- was imposed on the importer under section 112 (a) of the Customs Act, 1962 for having rendered the goods liable to confiscation. 4. Aggrieved by the order, the respondents filed appeal with the Commissioner (Appeals). The Commissioner (Appeals) ordered as under :- I have carefully gone through the facts of the case and submissions made by the appellant. This is a case of non- drawal of sample from the imported goods viz, red wine, white wine and Extra virgin olive oil by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal) and restoring the adjudication order. Arguing for Revenue, Ld. AR submits that the order of Commissioner (Appeals) is not legally sustainable because he relied on clarification issued on 23.3.2012 to decide contravention of law in respect of goods imported on 29.7.2011. At the time of import, imported goods were contravening the provisions of law then in force and therefore the goods were liable to confiscation. So he submits that the order is legally not correct and prays that it should be set aside and the original order should be restored. He relies on the decision of the Hon. Madras High Court in a similar matter of import of white oats imported during June 2011, by Avenue Impex Vs. CC in CMA No.1088/2012 dt.8.10.2012. Especially, he relies on para 35 of the order which reads as under :- 35. Though it is contended by the learned counsel for the 1st respondent/importer that the subsequent guidelines have been issued by the FSSAI dated 23rd Jan 2012, dispensing with such a requirement, in the considered opinion of this Court, the said notification only has prospective effect and it is settled position of law that administrative instructions do not have retrospective e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India by allowing the importer to do the labeling and thereafter asking the FSSAI to draw sample and test and release for home consumption if found suitable. He therefore prays that order of Commissioner (Appeals) is legal and proper and it should be upheld. 8. He further points out that the decision of the Madras High Court was in the context of white oats which has a short shelf life as compared to wine and olive oil. In the case of wine, it becomes better as it becomes older. So he submits that the order of Madras High Court in the case of Avenue Impex (Supra) is not applicable to the facts of this case. 9. Further he points out that the clarification 1/2008/import safety/FSSAI dated 20-05-2011 as reproduced in para 5 above and points out that the validity of the circular has been extended from time to time. 10. He relies on the order dated 03/08/2012 of Hon. Madras High Court in the case of Mahaveer Polychem and another Vs. UOI W.P. Nos. 16191 and 16912 of 2012. Para 31 of the order reads as under: 31. At the time same time, an interim order that would make the Act and the Regulations work, even while permitting the petitioners to carry on their business within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. Net Weight or Volume h. If the imported product is not meeting with the labeling requirement given above, samples of such product shall not be sent to the laboratories for analysis. 12. The above instructions classified defects into rectifiable defects and others. One of the non-rectifiable defects is the requirement of labeling Best before date. This may not have applied for wines in view of the circular dated 20-05-11. But even for applying the provisions of the circular dt 20-05-11, there was a need for a label showing alcoholic content which appears to have been not present. Labeling of ingredient list was also classified as a non-rectifiable defect. In such a situation the decision of the Hon Madras High Court in the case of Avenue Impex (supra) is to applied. The decision in the case of Mahaveer Polychem and another Vs. UOI W.P. Nos. 16191 and 16912 of 2012 is by a Single judge and the decision in the case of Avenue Impex is a decision of the Division Bench. So the latter has to be followed in this proceeding. 13. So I set aside the order of Commissioner (Appeal) and restore the order of the adjudicating authority. However, the time limit for re-export of goods is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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