Custom, Excise & Service Tax Tribunal
M/S. Swift Cleford Agency Pvt. Ltd vs Commissioner Of Customs (Mulund Cfs & ... on 7 April, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO.
Appeal No. C/85578 & 85597/2014
(Arising out of Order-in-Appeal No. 1160 & 1161 (CFS-Mulund)/2013/JNCH/IMP-915 & 916 dt. 19.11.13 passed by the Commissioner of Customs (Appeals), JNCH, Nhava Sheva, Mumbai-II
For approval and signature:
Honble Shri Ramesh Nair, Member (Judicial)
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1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
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M/s. Swift Cleford Agency Pvt. Ltd.
:
Appellant
M/s. Laborate Pharmaceuticals (India)
VS
Commissioner of Customs (Mulund CFS & General) Mumbai
:
Respondent
Appearance
Shri J. Arthar Prem, Consultant for Appellant
Shri S.J. Sahu, Asstt. Commr. (A.R) for respondent
CORAM:
Honble Shri Ramesh Nair, Member (Judicial)
Date of hearing : 07/04/2016
Date of pronouncement : 26/07/2016
ORDER NO.
Per: Ramesh Nair
These appeals are directed against the Order-in-Appeal No. 1160 & 1161 (CFS-Mulund)/2013/JNCH/IMP-915 & 916 dt. 19.11.13 passed by the Commissioner of Customs (Appeals), JNCH, Nhava Sheva, Mumbai-II.
2. The fact of the case is that the appellant filed Shipping Bill No. 7124572 dated 14.7.2008 through other Appellant CHA M/s. Swift Cleford Agency Pvt. Ltd. for export of 750 cartons of following Pharmaceutical drugs.:
(i) Filol Capsules 100000 packs
(ii) Mezol C Capsules 100000 packs
(iii) Alprazolam Tablets (1.0 mg) 10000 packs
(iv) Alprazolam Tablets (0.5 mg) 10000 packs
(v) Quard Cream 25000 tubes,
(vi) Methyl Prednisolone Injection 42000 Inj.&
(vii) Navidoxine Tablet 100000 sheets.
The aforesaid goods valued Rs. 31,26,067/- and DEPB claim amount of Rs.1,50,339/- meant for export to M/s. Haider Musa Mohamed Bassrah, Umm Qaser, Iraq. The consignments of said pharmaceutical drugs and medicines was carted in Customs area on 30.06.2008 by M/s. Swift Cleford Agency Pvt. Ltd.(CHA). On submission of documents for export, the Shipping Bill No. 7123488 dated 30.06.2008 was generated. After, 15 days, since the previously generated Shipping Bill expired, they filed for another check list and were allotted Shipping Bill No. 7124572 dated 14.07.2008.
After verification of the goods by Assistant Drugs Controller at Jawaharlal Nehru Customs House (JNCH), it was found that the goods Alprazolam Tablets (18 cartons valued at Rs.1,05,952/-) is a Narcotic & Psychotropic substance and not permitted for export without NOC from Narcotic Commissioner, Gwalior (M.P.). However the appellant exporter could not produce NOC fro Narcotic Commissioner, CBN, Gwalior. During enquiry of the case, the appellants partner in the statement, stated that prior to this consignment their firm exported various Narcotic drugs for which they obtained prior permission of Central Bureau of Narcotics (CBN), Gwalior; that regarding the subject consignment they got order on 17.05.2008 from the buyer M/s. Al-Read Scientific Bureau, Baghdad, Iraq; that they were not aware that export of Alprazolam Tablets required NOC from CBN, Gwalior; as soon as they came to know that NOC is required for the said product, they applied for the same on 26.06.2008 before the goods were transported from the manufacturing unit at Panipat to Mumbai; that consignment was intent to be stored in a private warehouse in Mumbai till they get NOC from CBN, Gwalior; that due to communication gap with CHA and ignorance on the part of CHA, the goods were carted at CFS, Mulund without requisite NOC from CBN, Gwalior; that on 30/06/2008 the CHA informed them about statutory requirement; they anticipated that they will receive the NOC from CBN, Gwalior before expiry of check list of shipping bill but as they could not get the NOC within the time, they instructed the CHA to apply for Back to Town of 18pkgs. Of Alprazolam Tablets; since the appellant could not obtain the NOC for the reason they could not get clearance from Iraqs counterpart Narcotic Dept. vide letter dt. 15.9.2009 requested Custom authority to allow export of part of the goods except 18 cartons of Alprazolam Tablets. Exports of 732 cartons were allowed. A show cause notice was issued to the appellant exporter, CHA, partners of appellant and Director of CHA proposing confiscation of 18 cartons of Alprazolam Tablets valued Rs.1,05,952/- and penalties on all the noticees. In the adjudication, the adjudicating authority passed the following order:
ORDER
24. In view of the above facts and findings, I pass the following order:
(i) I confiscate 18 CTNs of ) Alprazolam tablets, FOB value Rs.1,05,952/- absolutely since the importer failed to produce CBN, Gwaliors licence for export of restricted Narcotic drugs under the Shipping Bill No. 7124572 dated 14.07.2008 under Section 113(d) of the Customs Act.
(ii) DEPB amount of Rs.6,356/- (rupees six thousand three hundred and fifty six only) claimed on export of ) Alprazolam tablets is denied.
(iii) The impugned ) Alprazolam tablets (packed in 18 CTNs) are to be destroyed at exporters cost since the same not fit for human consumption at present.
(iv) I impose penalty of Rs.50,000/- (Rupees Fifty Thousand only) On M/s. Laborate Pharmaceutical (India) and penalty of Rs.50,000/- (Rupees Fifty Thousand only) on the partners of M/s. Laborate Pharmaceutical (India) under Section 114(i) of the Customs Act, 1962.
(v) I impose penalty of Rs. 25,000/- (Rupees Twenty Five Thousand only) on M/s. Laborate Pharmaceutical (India) and penalty of Rs. 25,000/- (Rupees Twenty Five Thousand only) on the partner of M/s. Laborate Pharmaceutical (India) under Section 114AA of the Customs Act, 1962.
(vi) I also imposed penalty of Rs.50,000/- (Rupees Fifty Thousand only ) on M/s. Swift Cleford Agency Pvt. Ltd., (CHA No.11/836).
(vii) I also impose penalty of Rs.50,000/- (Rupees Fifty Thousand only) on the Director of M/s. Swift Cleford Agency Pvt. Ltd. (CHA No. 11/836). Aggrieved by the aforesaid original order dated 21.05.2012, the appellants filed appeal before Commissioner (Appeals) which came to be rejected. Therefore the appellants are before me.
3. Shri J. Arther Prem, Ld. Consultant appearing on behalf of both the appellants submits that the appellant exporter was not aware that in respect of medicine namely Alprazolam tablets any NOC from CBN, Gwalior is required. When they came to know about this requirement, they applied for NOC on 26.06.2008 i.e. before dispatch of the goods from Panipat to Mumbai. Due to communication gap between the appellant and CHA, goods were carted at CFS, Bhiwandi and then Shipping Bill was filed for export. He submits that since the appellant already applied for NOC of CBN, there was no mala fide intention on their part. He submits that the appellant did not have any intention to export the goods without obtaining NOC from CBN, Gwalior as their application for the same was pending. He submits that in the given circumstances, the appellant exporter is not liable for any penal action. He also submits that there is no mis-declaration of description or value of the goods, therefore the goods is neither confiscable nor liable for penalty. In this support he relies upon the case law of Vetri Trading & Exports Vs. Commr. of Customs, Chennai 2008 (228) E.L.T. 447 (Tri.-Chennai). As regard penalty imposed upon other appellant CHA M/s. Swift Cleford Agency Pvt. Ltd., he submits that the dispute involved in the case is that the appellant exporter has not obtained NOC from CBN, Gwalior and produced the same before Customs authority. On this issue, no guilty is involved on the part of CHA. The CHA immediately, when came to know about the requirement of NOC, informed the exporter. He submits that whether NOC for Alprazolam tablets is required was beyond their knowledge. He submits that there is no other discrepancy in the documents of export handled by CHA such as mis-declaration etc. Therefore the CHA is not liable for penalty. In support he placed reliance on following judgments:
(i) Tirupur Container Terminals (P) Ltd. Vs. Commr. of Cus. Coimbatore 2006 (201) ELT 448 (Tri.-Chennai)
(ii) D.S. Cargo Service Vs. Commissioner of Customs, New Delhi 2009 (247) E.L.T. 769 (Tri.-Del.).
4. Shri S.J. Sahu. Ld. Assistant Commissioner (A.R.) appearing for Revenue reiterates the findings of the impugned order.
5. I have carefully considered the submissions made by both the sides. The issue to be decided by me is whether the export goods namely Alprazolam tablets 18 cartons are liable for confiscation for want of NOC from CBN and consequent penalties. I find that there is no dispute that the goods, namely Alprazolam tablets attempted to be exported is a psychotropic substance and the same requires NOC from CBN, Gwalior for export. Admittedly when Shipping Bill was filed appellant did not produce the required NOC. The appellant in earlier case of export, for other drugs, obtained NOC. In the present case also appellant had applied for NOC vide their letter dated 26.06.2008 i.e. before dispatch of the goods from Panipat to Mumbai. However the appellant suppressed this fact from CHA as well as from Custom Authority. It is only, when Assistant Drugs Controller at JNCH verified, it was revealed that there is no NOC and the same is required. It is surprised that when NOC is required which is known to the Appellant exporter as they themselves applied for the same, then why the same was not informed to Custom/CHA. This clearly shows the mala fide intention on the part of appellant. The conduct of the appellant clearly shows that they had intention to make an attempt of export of Alprazolam tablets without obtaining NOC from CBN. Though the appellant applied for NOC but it was a futile exercise as they did not have importer countrys permit for said Narcotic Drug without which, CBN can not issue NOC. It is established that the appellant attempted to export Narcotic drug without NOC, therefore the goods Alprazolam tablets 18 cartons were rightly confiscated. I therefore upheld the confiscation, denial of DEPB of Rs.6,356/- and penalty of Rs.50,000/- imposed under Section 114(i). However, as regard penalty of Rs.25,000/- imposed under Section 114 AA, I am of the view that there is no mis-declaration on the part of appellant exporter either in respect of description of goods or value. It is a case of attempt of export of declared goods without obtaining NOC from CBN. Therefore penalty under Section 114 AA is not warranted. Therefore I drop the penalty of Rs.25,000/- imposed on M/s. Laborate Pharmaceuticals (India).
As regard the appeal filed by CHA M/s. Swift Cleford Agency Pvt. Ltd. they submitted the documents given by M/s. Laborate Pharmaceuticals (India) to the Customs. In the documents there is no mis-declaration. On pointing out by the custom regarding NOC for Alprazolam tablet, the CHA immediately informed their client. It is the client M/s. Laborate Pharmaceuticals (India) who suppressed the fact of NOC not from custom but also from CHA. There is nothing on record to show the involvement of the CHA in attempt to export of psychotropic substance without NOC of CBN. Therefore in my considered view the CHA can not be implicated in the present case. I therefore drop the penalty of Rs.50,000/- imposed upon CHA M/s. Swift Cleford Agency Pvt. Ltd. In result the appeal of M/s. Laborate Pharmaceutical (India) is partly allowed in the above terms. The appeal filed by M/s. Swift Celford Agency Pvt. Ltd. is allowed.
(Pronounced in court on 26/07/2016 )
(Ramesh Nair)
Member (Judicial)
SM.
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C/85578 & 85597/2014