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TMI Blog2015 (2) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... batch size 150001 lakhs to 5 lakhs, the sample size should be 315 pieces and out of 315 pieces if the rejection number is 11 or more the batch is liable for rejection. As against the aforesaid method of testing provided under Drugs and Cosmetics Rules, 1945, it is observed from the test report given by Central Drugs Testing Laboratory, Chennai, the norms prescribed in Rules were not followed inasmuch as batch size taken 45 pieces, therefore the test carried out by the Central Drugs Testing Laboratory, Chennai can not be considered in accordance with law. On this serious discrepancy, the appellant pointed out to the authority and also requested the re-testing of the sample in accordance with the method prescribed under Drugs and Cosmetic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and examination has not been prescribed for the B/E subject to ADC NOC. RSS Sample of all the 04 batches covered under the bill of entry were forwarded to ADC, ADC allowed the release of 03 batches of the said consignments bearing batch no. 12N315 for 1500 gross, 12N315 for 1945 gross and 12N316 for 1500 gross. Remaining one batch no. 12N313 for 1500 gross was not given ADC NOC as it was not of standard quality. Since the ADC NOC for the impugned goods was not given it was contended that there is violation of the provisions of Drug and Cosmetics Act, 1940 and Rules hereunder. Accordingly, it was proposed that the goods valued ₹ 4,83,740/- is liable for confiscation under Section 111(d) of the Customs Act, 1962 and appellant is li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill of Entry was filed under RMS subject to ADV NOC. Since ADC NOC for the impugned goods were not given as it was not confirming to the standard quality and violated the provisions of Drugs Cosmetics Act, 1940 and Rules there under. The adjudicating authority rightly confiscated the impugned goods. The appellant view that the Test Report was forwarded by the foreign supplier and appellant had no role in the violation of the provisions does not absolve from levy of fine and penalty. The fine and penalty are leviable even when no mens rea is involved. Hon'ble CESTAT in the case of Sundaram finance Vs. Commissioner of Cusotms, Chennai [2012 (279) E.L.T. 220 (Tri.-Mad) has held that mens rea is relevant only for quantum of fine and pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Test under Annexure III for batch size of 150001 lakhs to 5 lakhs the sample size should be 315 and when out of 315, if the rejection number comes to 11 or more, the batch shall be rejected. It is his submission that as per the test report it is apparent that the prescribed statutory sampling plan was not followed for the reason that test of 45 pieces was done as against prescribed number of 315. Therefore appellant has raised serious dispute as regards, the test report of 45 pieces was done as against prescribed number of 315. Therefore appellant has raised serious dispute as regards, the test report and vide their letter dated 10/12/2012 addressing to the The Assistant Drug Controller (India), Director General of Health Service, JNPT and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving its report that out of 4 specifications of goods 1 item was found as sub-standard and accordingly its import was not allowed. Therefore the lower authority has correctly held the goods liable for confiscation and the appellant is liable for penalty. 4. I have carefully considered the submissions made by both the sides and perused the records. 5. I have gone through various provisions of Drugs and Cosmetics Rules, 1945 as referred by the Ld. Counsel for the appellant, which are reproduced below: Drugs and Cosmetics Rules, 1945 125. Standards for substances (other than food) intended to affect the structure or any function of human body-contraceptives (1). The Standards for mechanical contraceptives shall be such as are laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the test carried out by the Central Drugs Testing Laboratory, Chennai can not be considered in accordance with law. On this serious discrepancy, the appellant pointed out to the authority and also requested the re-testing of the sample in accordance with the method prescribed under Drugs and Cosmetics Rules, 1945. The same was neither considered nor sample was re-tested. Therefore, I am of the view that subject goods was not liable for confiscation. I also agree with the Ld. Counsel that Rule 141 of the Drugs and Cosmetics Rules, 1945 provides for re-shipment of the goods and goods admittedly re-exported. For this reason also the goods are not liable for confiscation and also not liable for consequential penalty. The ratio applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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