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TMI Blog2019 (11) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... import consignment has categorically mentioned that the samples are unsafe and mis-branded as per the provisions of Section 3 (1) of the FSS Act, 2006. The argument made by the appellant is not legally sustainable as the Customs Act under Section 112A provides that penalty under the Section should not exceed the value of the goods. Since, the import consignment falls under the category of the prohibited goods and it has also been found that the value declared by the importer is not correct. The seizure value of these goods have been taken as market value since as the goods are of prohibited nature, they are certainly to fetch high margin of profit in the domestic market - The Adjudicating Authority has accordingly taken the market value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Target Intervention instructions before o/c. Please check NOC from PHO/FSSAI or check previous 5 NOC as per DGFT Circular No. 25/2004 and 37/2004 for PHO waiver. The consignment was examined and cleared with examination report bearing O/E 10% of the Goods in presence of CHA representative and found to contain Dietary Supplements as per Inv/PL/BL.. Five previous B/E att. for waiver of FSSAI. . The consignment was given out of charge on 14/08/2013 after enhancing the declared value. However, on the request of DRI, Lucknow, the said consignment was put on hold on 14/08/2013 by Deputy Commissioner of Customs, ICD, Tughlakabad for 100% examination in the presence of DRI. The said consignment was examined by DRI on 21/08/2013 under a panchnama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 is the Director of CHA firm who has undertaken the clearance work of the consignment that he was aware of requirement of NOC from FSSAI but he did not obtain and instead submitted five previous bills of entry in respect of same goods and same supplier for waiver; he has wrongly mentioned the country of origin as UAE instead of USA in B/E and also filled blank GATT declaration forms having signature of the party on forms only; he did not comply with the requirements of Legal Metrology (Packed Commodity) Rules, 2011, that he knows to Shri Sunny Gujral, the supplier of the consignment and he introduced appellant No. 2 to him for supply of dietary supplements. 3. Show Cause Notice dated 02/02/2014 was issued by Additional Director Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the licence; and (iii) any article of food in contravention of any other provision of this Act or of any rule or regulation made there under or any other Act. Para 7 of CBEC Circular No. 03/2011-Cus a) consignments of high risk food items, as listed in DGFT Policy Circular No. 39(RF-2003)/2002-2007 dated 14/06/2004 (as may be modified from time to time), shall be referred to Authorised Representative of FSSAI or PHOs,- as the case may be, for testing and clearance shall be allowed only after receipt of the test report as per the instructions contained in the Customs Circular No. 58/2001-Cus, dated 25/10/2001. b) All consignments of perishable items like fruits, vegetables, meat, fish, ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of compulsory checking. The system of random sampling for import of such food items would be restored only if the test results of the samples drawn from the 5 consecutive consignments re-establish that the food items are in conformity with the prescribed standards. 4. Vide impugned order, the learned Commissioner found that the conduct of the Inspector and Superintendent could not be considered sufficient to hold that they had abetted in the offence even though there may be some omissions by these officers and accordingly no penalty was imposed upon them. He imposed penalties equal to value of the seized goods ₹ 2,17,97,466/- on both the appellants. However, he ordered that no penalty is imposed on Noticee No. 3, as the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not legally sustainable as the Customs Act under Section 112A provides that penalty under the Section should not exceed the value of the goods. Since, the import consignment falls under the category of the prohibited goods and it has also been found that the value declared by the importer is not correct. The seizure value of these goods have been taken as market value since as the goods are of prohibited nature, they are certainly to fetch high margin of profit in the domestic market. The Adjudicating Authority has accordingly taken the market value of such goods as prevailing in the local market for imposition of penalty, we are of the opinion that the amount of the penalty imposed on both the appellants is in accordance with the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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