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TMI Blog2017 (12) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... r re-export of the cargo is set aside and the respondents are directed to permit the petitioner to re-export the cargo within a period of one month from the date of receipt of a copy of this order - petition allowed in part. - W. P. No. 26795 of 2017 & W. M. P. No. 28519 of 2017 - - - Dated:- 12-12-2017 - T. S. Sivagnanam, J. For the Petitioner : Mr. Vijayanarayananfor Mr. S. Baskaran For the Respondents : Mrs. R. Hemalatha, Senior Panel Counsel ORDER Heard Mr.Vijayanarayanan, learned Senior Counsel representing Mr.S.Baskaran, learned counsel for the petitioner and Mrs.R.Hemalatha, learned Panel Counsel for the respondents. With the consent on either side, this writ petition itself is taken up for final disposal. 2. The petitioner is before this Court challenging an order passed by the second respondent, the Commissioner of Customs (Appeals-II) dated 25.09.2017. 3. The learned Senior Panel Counsel would submit that the petitioner has remedy of appeal as against the impugned order before the CESTAT and the writ petition is liable to be dismissed as not maintainable. 4. The learned Senior Counsel for the petitioner submits that in this writ petition the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00,000/- observed that the Original Authority was wrong in invoking Section 111 (m) of the Customs Act, and the correct provision would be, Section 111 (d) of the Customs Act. 4.It is submitted by the learned Senior Counsel that the Appellate Authority/second respondent has accepted the submission of the petitioner that, in terms of Rule 41 of the Drugs and Cosmetics Act, 1940, the option for re-export is with the petitioner, and therefore, both the Authorities could not have rejected the request made by the petitioner for re-export. That apart, the Authorized Laboratory has certified that the sample drawn confirms to the standards. In such circumstances, it cannot be stated that the Drugs are spurious, because, Certificate of Analysis is given by Chinese Suppliers, and the respondents are not entitled to invoke Section 9 (D) (d) of the Drugs and Cosmetics Act, 1940. 5.The learned Senior Counsel further submits that, it is no doubt true that the petitioner has an Appellate remedy by filing further Appeal before the Customs, Excise Service Tax Appellate Tribunal (CESTAT), and the CESTAT has jurisdiction to grant an order of re-export, but the said remedy is not efficaciou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppliers and they were unable to secure any information, but ultimately a show cause notice was issued to the petitioner stating that the batch number mentioned in the certificate of analysis did not match with the batch number in the commercial invoice. The petitioner submitted their explanation and the adjudicating authority confirmed the proposal in the show cause notice and ordered absolute confiscation of the goods, imposed penalty and rejected the request for re-export of consignment. This was confirmed by the Appellate Authority. In order to ascertain as to whether the product was spurious or not, this Court issued an interim direction on 26.10.2017 to the following effect: Heard Mr.Vijaynarayan, learned Senior Counsel appearing for Mr.S.Baskaran, learned counsel on record for the petitioner. 2. On 13.10.2017, this Court, after hearing the arguments of the learned counsel on either side, formulated issues, which would fall for consideration in the writ petition. The learned Senior Panel Counsel appearing for the respondents was directed to get instructions and produce copies of three letters, which the learned counsel has produced before this Court. On a perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not spurious, in the sense that it is not unfit for human consumption etc. 8. However, the learned Senior Panel Counsel would contend that in view of the definition of spurious drugs as defined under Section 9B of the Drugs and Cosmetics Act, since there is a mismatch in the batch number of the product, the respondents were justified in passing the impugned orders. At this juncture, it would be worthwhile to refer to Rule 41 of the Drugs and Cosmetics Rules, which would take care of the situation as arising in the instant case. For better understanding, the Rule is quoted hereunder: 41.(1) If the Director of the laboratory appointed for the purpose by the Central Government or any other officer empowered by him on this behalf, subject to the approval of the Central Government, reports to the Customs Collector that the samples of any drug in a consignment are not of standard quality, or that the drug contravenes in any other respect the provisions of Chapter III of the Act or the Rules thereunder and that the contravention is such that it cannot be remedied by the importer, the Customs Collector shall communicate the report forthwith to the importer who shall, within two m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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