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TMI Blog2015 (8) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... State in which goods are imported are unsuitable for immediate consumption – It was obviously mis-declaration on part of importer – Goods therefore liable for confiscation – Once imported goods are found to be classifiable under CTH 0802 8020, their import is not allowable if their CIF value is below ₹ 75 per kg. as provided in DGFT Notification – In view of facts and circumstances of case, court of opinion that as goods are classifiable under CTH 0802 8020 duty @ 100% BCD and 4% Additional duty was leviable – Thus, order of adjudicating Commissioner modified to extent of reduction in amount of redemption fine whereas duty and imposition of penalty confirmed – Decided against assesse. - C/71059/2013-DB - - - Dated:- 7-4-2014 - D.M. Misra, Member (J) and Dr. I.P. Lal, Member (T) Shri B.K. Singh, Advocate, for the Appellant. Shri A.K. Das, Special Counsel, for the Respondent. ORDER This is an appeal filed against the order dated 14-8-2013 passed by the Commissioner of Central Excise and Service Tax, Bolpur confirming the differential duty of ₹ 1,42,09,369/-, imposing redemption fine of ₹ 1,25,00,000/- in lieu of the confiscation of the importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. The goods were released provisionally subject to the condition to pay duty as per declaration made by the importer and furnishing a bond and bank guarantee of ₹ 3.30 crore. The Applicant has taken release of the goods after furnishing the Bond and Bank Guarantee. Show cause notice was adjudicated by the ld. Commissioner culminating into the impugned order. Being aggrieved the Appeal is filed before this forum. 3. The ld. Advocate appearing for the Appellant has submitted that in view of the presence of SO2, the imported goods were classifiable under chapter Heading 0812 of CTA, 1975 which covers items description fruit and nuts provisionally preserved (for example, by sulphur dioxide gas, in brine, in sulphur water or in other preservative solutions), but unsuitable in that state for immediate consumption. 3.1 As regards the conditions put in the sub-heading 0802 that to merit the classification under the said heading, the subject goods should be unsuitable in that state for human consumption, he submitted that once SO2 is present in the imported goods, it is immaterial whether they were suitable in the form in which they were imported or become fit for human con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sequential order, the subject goods are classifiable under Chapter sub-heading 0812. 3.5 The ld. Advocate submitted that Tariff Heading 8 of the Customs Tariff is structured in a particular manner so as to cover the edible fruit and nuts; Peel of citrus fruit or melons. Thereafter, it is sub-divided into sub-headings. However, once it is established that any fruit or nut is treated in a manner mentioned in the said Heading 0812, all such nuts and fruits will be covered by this heading. He illustrated his point by giving examples of the Cheris, if those are fresh are covered under Heading 08022100 and 08092900, but if the same are preserved by methods mentioned in 0812, the same goods classified under Heading 0812 only and that is more specific. Similarly betel nuts, if not preserved provisionally then those are classifiable under Heading 0802 of the Tariff; but if the same is provisionally preserved by methods mentioned in 0812, the same will get classified under that heading as that become more specific. He relied on the decision of Hon ble Supreme Court in the case of Commissioner of Central Excise v. Minwool Rock Fibre [2012 (278) E.L.T. 581 (S.C.)]. 4. The ld. Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2(ia), which reads under Section :- (ia) adulterated - an article of food shall be deemed to be adjulterated :- ----------------------------- (f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or deseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption; ----------------------------- ----------------------------- (h) if the article contains any poisonous or other ingredient which renders it injurious to health; ----------------------------- (k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits; Thus, the test report indicating that the sample is not adulterated clearly indicates that it is neither unfit for human consumption, nor contains any ingredient which renders it injurious to health, nor does it contain any permitted preservative in excess of the prescribed limits. The imported goods are, therefore, NOT unsuitable for consumption. The ld. Special Counsel submitted that to get the matter more clarified the department wrote a letter dated 14-12-2012 to Central Food Laboratory asking whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was dependent on the fact for the unsuitability of the goods for immediate consumption and on this very question of fact the importer has misdeclared, as the test reports have indicated. 10. He submitted that as the classification of the imported betel nut was sought for by the Appellant under CTH 0812 (which sub-heading has the essential criteria that the State in which the goods are imported are unsuitable for immediate consumption, which on test was found on test to be otherwise. It was obviously a mis-declaration on the part of the importer. The goods are, therefore, liable for confiscation under Section 111(m) of Customs Act, 1962. Since in the present case the classification solely depends upon the fact of unsuitability of the imported goods for immediate consumption and on that point, the importer has mis-declared, as the test reports have proved, the goods are therefore liable for confiscation under Section 111(m) of the Customs Act, 1962. 11. On the issue of quantum of redemption fine it has been submitted by the ld. Special Counsel that redemption fine of ₹ 1.25 crore has been imposed in this case. It is submitted that DGFT has fixed the value as S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eatment etc. for additional preservation, will not alter their classification. 14. The ld. Advocate has submitted that in this case split betel nuts are preserved by Sulphur-Di-Oxide which is class II preservative and requires various processing after the goods were imported to make them suitable for human consumption and therefore being unsuitable in that state for immediate consumption they are correctly classifiable under chapter 0812. As against this we find that the various test reports mentioned as under :- Plant Quarantine Laboratory in its report dated 3-12-2012 and 27-11-2012 reported that recommended for release (for consumption purpose only) . Central Food Laboratory in its report dated 10-12-2012 mentioned that SO2 present within limit approved for nuts and opined the sample is found not adulterated in respect of tests mentioned above . Further against a specific query by the department, CFL in its report dated 27-1-2014 clarified that conclusively the product was declared safe food . On the basis of food safety parameters under its rules and regulations, 2011. However, on the opinion whether Fit for human consumption , cannot be written as the Food Safety ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Circular dated 31-7-1997 and the judgment of the Hon ble Karnataka High Court in case of Vishista Solvent Oils Pvt. Ltd. to support their plea that the exemption is available/admissible so long as the oil imported is used for edible purposes even after refining. We find that the issue involved in the above citations, was regarding applicability of exemption Notification. Thus, we find that the Board s Circular and the judgement in case of Vishista Solvent Oils Pvt. Ltd. cited by the ld. Advocate are distinguishable from the facts of the present Appeal. 18. In view of the facts and circumstances of the case narrated above, we are of the opinion that the impugned goods are classifiable under CTH 0802 8020 of the Customs Tariff and chargeable to duty @ 100% BCD and 4% Additional duty. Since the declared CIF value is less than ₹ 75/-, their import is not free in view of the DGFT Notification cited (supra). Accordingly the imported goods are liable for confiscation under Section 111(d) of the Customs Act, 1962, as they are imported in violation of the provisions of D.G.F.T. regulation. They are also liable for confiscation under provisions of 111(m) of the Customs Act, 1962 as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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