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TMI Blog2020 (2) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal, in disproving the correctness of the examination report furnished by the department. On the contrary, it is observed from the submissions recorded from the appellant at paragraph 6 in the impugned order that it had agreed with the fact of mis-declaration of goods and noncompliance of the CDSCO requirement as per the provisions contained in the Drugs and Cosmetic Act, 1940. Thus, we are of the considered view that rejection of the declared value by resorting to the provisions of Rule 12 ibid and re-determination of the same under Rule 9 ibid read with Section 14 ibid is in conformity with the statutory provisions. In case of non-compliance of the prohibitions/restrictions contained in Section 11 ibid, the discretion vested w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 4-9-2019 - HON BLE MR. S.K. MOHANTY, MEMBER (JUDICIAL) AND HON BLE MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Ashok Kumar Singh, Advocate for the Appellant Shri Bhudhan Kamble, Authorized Representative for the Respondent ORDER PER: S.K. MOHANTY These appeals are directed against the impugned order dated 19.06.2019 passed by the Commissioner of Customs, Nhava Sheva. 2. Briefly stated, the facts of the case are that the appellant M/s Nirvanza Trading Pvt. Ltd. is inter alia, engaged in the business of trading of cosmetic products, perfumes and deodorants. During the disputed period September 2018, the appellant had imported EDT-100ML, Deodorants-200ML, Body Spray-250ML, Bioluxe Scrub-500ML from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the impugned order has absolutely confiscated the cosmetics valued at ₹ 1,25,48,722/- under Section 111(d) ibid on the ground that the said goods were attempted to be imported without any valid CDSCO Certificate, and thus, the provisions of Drug Cosmetics Act, 1940 have been violated. The goods valued at ₹ 21,15,317/- were allowed for redemption on payment of redemption fine of ₹ 2,50,000/-. The impugned order has imposed penalty of ₹ 35,00,000/- on the appellant company under Section 112(a) ibid. Besides, the impugned order also imposed penalties of ₹ 10,00,000/- each under Section 112(a) ibid and 114AA ibid on the other appellant Shri Dhananjay Balchandra Desai. 3. The learned Advocate appearing for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also most of the goods were not in conformity with the CDSCO Certificate. This fact is evident from paragraph 11 of the impugned order. Further, the appellant had not submitted any plausible evidence either before the original authority or the Tribunal, in disproving the correctness of the examination report furnished by the department. On the contrary, it is observed from the submissions recorded from the appellant at paragraph 6 in the impugned order that it had agreed with the fact of mis-declaration of goods and noncompliance of the CDSCO requirement as per the provisions contained in the Drugs and Cosmetic Act, 1940. Thus, we are of the considered view that rejection of the declared value by resorting to the provisions of Rule 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions, it transpires that in case of non-compliance of the prohibitions/restrictions contained in Section 11 ibid, the discretion vested with the adjudicating authority under Section 125 ibid is to be exercised in the prescribed manner; In case if the restriction or regulation relating to import of goods is violated, then no discretion can be exercised by the Commissioner in offering an option for payment of redemption fine in lieu of confiscation of the goods. Moreover, the Hon ble Madras High Court, in the case of ALM Enterprises Vs. Commissioner of Customs, Imports, Chennai - 2017 (353) ELT 289 (Mad.) have observed that when any restriction or condition is imposed by or under the other statute, then the adjudicating authority under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of information regarding mis-declaration of goods, they immediately contacted the supplier, who, in turn, had confirmed that due to cross stuffing, the goods were wrongly supplied to the appellant company. Further, it is also evident from the impugned order that the appellant company had made the request to overseas supplier for re-exportation of the goods. Thus, under the circumstances, we are of the considered view that the quantum of redemption fine and penalty imposed on the appellant company can be reduced in the interest of justice. 10. The impugned order has invoked the provisions of Section 112(a) ibid and Section 114AA ibid for imposition of penalties on the other appellant Shri Dhananjay Balchandra Desai, Director of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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