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TMI Blog2015 (9) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... ratory, i.e., Sri Ram Institute of Industrial Research, New Delhi. The goods were examined in the presence of the staff of Customs and of the Respondent and samples were drawn for testing at the SGS Laboratory Pvt. Ltd. at Gurgaon. However, the CHA and the representative of the Respondent requested that the sample be sent for testing to any Agmark Testing Centre. A written request was made by the Respondent to the Customs authorities by letter dated 3rd February, 2011. 3. The Respondent thereafter filed Writ Petition (Civil) No.953/2011 before this Court. This Court by an order dated 1st March, 2011 in the said writ petition directed the Department to draw the necessary samples in the presence of the Respondent and send them to any of the Agmark Testing Centres in terms of Circular No. 33(RE-2008)/2004-2009 dated 30th September, 2008 of the Customs Department. 4. Pursuant to the above order, samples were drawn on 10th March, 2011 and sent to the Regional Agmark Laboratory, Okhla, New Delhi (RAL). Two analytical reports, both dated 14th March 2011, were submitted by the RAL. The findings returned by the RAL in the said reports were as under: 1. The sample does not conform to stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscated and penalty should not be imposed. 7. The Additional Commissioner of Customs by the order dated 21st October, 2011, inter alia, held that although the samples conform the requirement of the length and length/breath ratio as per the DGFT Circular dated 5th November 2008, they failed to conform to the standard of Basmati Rice since the samples contained other rice in a proportion that exceeded 20% and did not possess the required natural fragrance in both raw and cooked stages. Therefore, from the report of the RAL it was evident that the goods presented for export was non-Basmati Rice which was prohibited for export. The Additional Commissioner, therefore, ordered confiscation of the seized goods valued at Rs. 42,73,320/- under the Provisions of Section 113(d) & (i) of the Customs Act, 1962. However, an option was given to the Respondent to redeem the goods on payment of a redemption fine of Rs. 8,00,000/-. The Additional Commissioner also imposed a penalty of Rs. 3,00,000/- on the respondent under Section 114 of the Customs Act, 1962. 8. The Appeal filed by the Respondent against the aforementioned order was dismissed by the CoC (Appeals) by order dated 15th February, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai-IV v. Damnet Chemicals (P) Ltd. & Ors. (2007) 7 SCC 490 to submit that the report of the RAL was binding on the customs authorities. 11. Learned counsel for the Respondent, on the other hand, submitted that the samples clearly conformed to the requirements of length and the length/breadth ratio in terms of the DGFT notification dated 05th November, 2008. The requirement regarding percentage of other rice was later on introduced by the Department on its own and even the show cause notice did not call upon the Respondent to explain any discrepancy on that score. It was submitted that it was only the requirements of the above mentioned DGFT notification that were expected to be complied with. It was further submitted that the test reports did not clearly indicate whether the 'other rice' found present in the consignment was also another form of Basmati Rice itself. A reference was made to the reply received by the Respondent under the Right to Information Act (RTI Act) from the Bureau of Indian Standards that there was no Indian Standard or method to differentiate non-Basmati Rice from Basmati Rice. A reference was also made to the reply dated 22nd September, 2011 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including red grain as 20%. 13. Therefore, the contention of the Respondent that the samples in question were required to conform only to the DGFT notification dated 5th November 2008 and only in terms of the length and length/breadth ratio as specified in said the DGFT notification is not acceptable. In the decision in Global Agro Impex (supra), the CESTAT did not have the benefit of noticing the DGFT circular dated 30th September, 2008 which permitted samples to be sent for analysis to Agmark Centres. It was in that context that the CESTAT declined to act on the Agmark Standards which conform to the standards prescribed under the Basmati Rice Rules. To that extent, the CESTAT, in the impugned order, by mechanically following the earlier decision in Global Agro Impex (supra) clearly committed an error. In the present case, the testing by the RAL was on the request of the Respondent itself as is evident from the order dated 1st March, 2011 passed by this Court in Writ Civil Petition No. 953/2011. Learned counsel for the Appellant is right in the submission that once there was a report of the RAL clearly stating that the samples did not conform to the requirements of the Basmati Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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