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TMI Blog2016 (1) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities are fully justified to verify the impugned goods are Basmati Rice or not. We, therefore, find no illegality in the orders of the lower authorities in the said respect. Confiscation of goods already exported - Held that:- There is a difference between confiscation and liable to confiscation. It is settled law that the goods which are liable to confiscation can be ordered for to be confiscated, and fine in lieu of confiscation can be imposed. We also find that the amount of redemption fine in the instant case is only ₹ 3 lacs whereas value of the goods is ₹ 30,96,207/- which is considerate and appropriate. - Decided against the the appellants. - Appeal Nos. C/10039, 10117/2015 - ORDER No. A/11697-11698/2015 - Dated:- 26-11-2015 - P M Saleem, Member (T) For the Appellant : Shri P D Rachchh, Adv For the Respondent : Shri L Patra, AR Shri T K Sikdar, AR ORDER Per P M Saleem The facts of the case are that the appellant herein has filed two appeals against two separate orders of the Commissioner (Appeals) in respect of a single Order in Original. The first order by Commissioner (Appeals) was on an appeal filed by the assessee appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled, milled both in either par-boiled or raw condition) Free 1. Grain of rice to be exported shall be more than 7 mm of length and ratio of length to breadth of the grain shall be more than 3.6; 2. Exports to Russian Federation permitted subject to pre-shipment quality certification issued by Sri Ram Institute for Industrial Research or any other agency as may be notified from time to time. 3. Export permitted only if the minimum FOB price is US$ 1200 per ton or ₹ 54,000/- per ton. 4. Export of Basmati Rice will be restricted through the following six ports only: (i) Kandla (ii) Kakinada (iii) Kolkata (iv) JNPT, Mumbai (as approved vide Notification No.82 dated 5.3.08. (v) Mundra, and (vi) Pipavav (as approved vide Notification No.84 dated 17.3.08). 2. All other provisions of the Notification No.93 (RE-2007)/2004-09 dated 1st April, 2008 shall remain unchanged, and shall continue to apply. 3. This issues in public interest. 3. The Learned Counsel submits that against Sl. No 45AA of the Notification there are only two ingredients specified under column 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Notification, the goods have to be Basmati Rice first and then satisfy the restriction mentioned in the column 6. He submits that the Commissioner (Appeals) has gone into the issue in detail in the impugned order in appeal and held that the gods exported are not Basmati Rice. The Commissioner (Appeals) has rightly relied upon the DGFT Circular Policy No. 33 (RE-08)/2004-2009 dtd 30.9.2008 which inter-aliea mentions that for deciding whether the goods are Basmati Rice or not, AGMARK testing can be done. He further submits that the goods were exported under the benefit of the impugned Notification and samples were drawn and hence the assessee appellant is bound by the test report and the consequent action is taken based on the test report. Therefore, there is no illegality with regard to confiscation of the goods and redemption fine. Further, he drew the attention to Para 12.6 of the impugned Order in Original, wherein the Adjudicating Authority has held that the goods are liable for confiscation due to violation of various provisions such as Section 113D of Customs Act and Section 11(1) of the Foreign Trade Development Regulation Act 1992 as amended. He also contends that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hantable condition. B) Special characteristics: Grade designation Special characteristics (maximum limits of tolerance) (percent by weight) Foreign matter Broken and fragments Other rice including red grains* Damaged discoloured and chalky grains Moisture Special 0.5 5.0 10.0 1.0 14.0 A 1.0 10.0 15.0 2.0 14.0 B 2.0 10.0 20.0 3.0 14.0 * Red grains shall not exceed 2% C) Definitions: 1) Foreign matter Shall include dust, stones, lumps of earth, chaff, stem or straw and any other impurity. 2) Brokens and fragments - Shall include pieces of rice kernels which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were drawn and sent for test. It is seen that the benefit of the Notification rests upon meeting certain parameters which can only be ascertained by testing samples. However, the goods were allowed to be exported, pending the test results and the assessee agreed for taking the samples and being bound by the test results and allowing the clearance of the goods. Such clearance of the goods, pending the test results, is a facilitation in favour of the assessee as otherwise the goods would be held up for clearance. Therefore, the consequent action resulting from the test result cannot assailed on the ground that the goods have already been cleared and therefore the same is not liable for confiscation, in case the goods are otherwise liable to confiscation as per the provisions of the law. Further, there is a difference between confiscation and liable to confiscation. It is settled law that the goods which are liable to confiscation can be ordered for to be confiscated, and fine in lieu of confiscation can be imposed. We also find that the amount of redemption fine in the instant case is only ₹ 3 lacs whereas value of the goods is ₹ 30,96,207/- which is considerate and app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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