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TMI Blog2024 (10) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... Trade Policy (FTP) is designed by the Directorate General of Foreign Trade (FGFT) under the authority of Foreign Trade (Development and Regulation) Act, 1992 with the customs authorities playing an agency role in enforcement thereof. In matters such as SCOMET regime, which, if wrongly applied and indiscriminately, could defeat the purpose of trade promotion and, involving technologies specified in international conventions, customs authorities should necessarily have obtained authoritative opinion from the licensing authority. The assumption of the adjudicating authority that the restrictions were amenable to broadbanding, and that too in a restrictive regime, is an incorrect perspective on licensing rules and regulations - It is unable to fathom the scope for preponderance of probability , which relates to discharge of onus to establish goods as not smuggled or in application of evidence, for varying the requirements of customs law to goods which, admittedly, had been declared and made available for examination at the time of export. From the manner in which the adjudicating authority has dealt with the proposition in the show cause notice, as well as disregard of the defence put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hnologies (SCOMET) regime, which inter alia included 3D00615 Fermenters (1) Fermenters capable of cultivation of micro-organisms or of live cells for the production of viruses or toxins, without the propagation of aerosols, having a total internal volume of 20 litres or greater; (2) Components designed for such fermenters, as follows:- a. cultivation chambers designed to be sterilized or disinfected in situ; b. cultivation chamber holding devices; or c. process control units capable of simultaneously monitoring and controlling two or more fermentation system parameters (e.g. temperature, pH, nutrients, agitation, dissolved oxygen, air flow, foam control). Technical Note: Fermenters include bioreactors (including single-use (disposable) bioreactors), chemostats and continuous-flow systems. 3. Based on inputs from the special wing of the Central Board of Indirect Taxes and Customs pertaining to one specific consignment, the overseas transactions of the exporter came under scrutiny and proceedings were initiated for non-furnishing of licence from the competent authority as prescribed for export of such goods. It is seen from the impugned order that the confiscation of the exported goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 67 (SC)] and Commissioner of Central Excise v. Parle Exports (P) Ltd [1998 (11) TMI 108 (SC)], were rendered inapplicable thus 5.4.1.1. . The judgments has dealt with interpretation of exemption notification and tariff schedule under taxing statute, whereas Notification No. 29/2015-20 dated 21.09.2017, which has been issued by DGFT, governs the trade policy, which deals with export of SCOMET items, which is permitted subject to authorizations, so the ratio of the said case laws are not applicable to the instant case. 5. Furthermore, the adjudicating authority asserted that such proceedings were governed by preponderance of probability and not by mathematical precision with the finding that 5.4.2 Further, it is well settled law that the department is not required to prove its case with mathematical precision to a demonstrable degree. The law does not required the department to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Therefore, even if some of the facts remain undisclosed during investigation, it does not tantamount to the absence of such m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. It was also pointed out that M/s Sevenseas Global Express Logistics Pvt Ltd had been proceeded with by the licensing authority, viz., Commissioner of Customs, Bengaluru, who had dropped the proceedings under the said regulations. 8. According to Learned Authorized Representative, the adjudicating authority had correctly pointed out that the SCOMET regime was intended for particular purpose and that broad view taken about the impugned goods being covered by the said regime was not disputed. The factum of having obtained export licence after the investigation commenced was, according to him, clear indication of coverage by the restricted regime and submitted that the end-use certificate furnished by the exporter did not advance their case inasmuch their validity could have been acknowledged had they been issued by the official authorities. He further referred to the said notification of the Directorate General of Foreign Trade (DGFT) as well as scientific literature to point out that the action taken in the impugned order could not be faulted. 9. It would appear that the SCOMET regime was intended to monitor goods capable of dual use and to preclude deployment for purpose other t ..... 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