Bombay High Court
The Commissioner Of Customs ... vs Abbas Haveliwala C/O. Uni Colloids ... on 26 June, 2024
Author: K.R. Shriram
Bench: K.R. Shriram
2024:BHC-OS:9405-DB 1/4 16.1-CUAPP-19-2022 & 21-CUAPP-22-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
PURTI
PURTI PRASAD
ORDINARY ORIGINAL CIVIL JURISDICTION
PRASAD PARAB
PARAB Date:
2024.06.29
11:00:13
+0530
(16) CUSTOMS APPEAL NO. 19 OF 2022
The Commissioner of Customs (Import-II) ....Appellant
V/s.
Uni Colloids Impex Pvt. Ltd. and Anr. ...Respondents
AND
(21) CUSTOMS APPEAL NO. 22 OF 2022
The Commissioner of Customs (Import-II) ....Appellant
V/s.
Abbas Haveliwala
C/o. Uni Colloids Impex Pvt. Ltd. ...Respondent
----
Mr. Subir Kumar a/w Mr. Satyaprakash Sharma for Appellant.
Mr. Prakash Shah a/w Mr. Jas Sanghavi i/b PDS Legal for Respondent.
----
CORAM : K.R. SHRIRAM &
JITENDRA JAIN, JJ.
DATED : 26th JUNE 2024 P.C. :
1. Appellant in this appeal under Section 130 of the Customs Act, 1962 is impugning an order dated 11 th June 2020 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (CESTAT).
2. It is appellant's case that on intelligence that was gathered by the Officers of Special Investigation and Intelligence Branch (Export), Mumbai that some importers were clearing the consignments of Sweet Whey powder (ITCHS Code-0404) duty free against the entry Purti Parab ::: Uploaded on - 29/06/2024 ::: Downloaded on - 14/07/2024 17:40:00 ::: 2/4 16.1-CUAPP-19-2022 & 21-CUAPP-22-2022.doc "Leavening Agent" mentioned in the duty free import authorization licence issued to the exporters against export of biscuits and thereby evading huge amount of customs duty by misrepresenting, misinforming and deliberately suppressing certain relevant facts. Admittedly, respondent had imported Sweet Whey powder. The issue to be considered is whether that was permissible under the duty free import authorization licence issued by the Director General of Foreign Trade (DGFT). The tribunal has answered issue in affirmative. The department is unhappy with the conclusions arrived at by the tribunal and in this appeal proposed following substantial questions of law.
SUBSTANTIAL QUESTIONS OF LAW
(a) Whether the CESTAT was right in law in allowing the Appeal solely on the basis of purported expert opinions with regard to unconnected duty free item disregarding cogent evidence in the form of own un-retrated admission of the Respondents establishing contrary?
(b) Whether CESTAT was right in law on disregarding brushing aside the letter dated 30/11/2013 of Prof. G. Subrahmaniyam, Department of Biosciences and Bioengineering, IIT, Mumbai clearly stating that his opinion was misused (by the Respondents) and opining that primary use of 'Sweet Whey Powder' is not as a leavening agent?
(c) Whether the CESTAT was right in law to rely upon on expert opinions pertaining 'Whey Powder/Whey Protein' while deciding applicability of duty free notifications (i.e. Notification No. 40/2006-Cus dated 1st May 2006 & Notification No. 98/2009-Cus dated 11th September 2009) to 'Sweet Whey Powder'?
(d) Whether the CESTAT was right in law in brushing aside the un- retracted statement of the persons holding a responsible post in the Respondent firm, recorded under section 108 of the Customs Act, 1962 and giving way only to expert opinions while passing impugned final order?
Purti Parab ::: Uploaded on - 29/06/2024 ::: Downloaded on - 14/07/2024 17:40:00 ::: 3/4 16.1-CUAPP-19-2022 & 21-CUAPP-22-2022.doc
3. In the Show Cause Notice, it is stated that, for biscuits which were exported seven items were permitted to be imported duty free, one of which is additives and other baker ingredients - Leavening Agent. Admittedly, respondent imported Sweet Whey powder as a leavening agent. Relying on various evidence available the tribunal concluded that Sweet Whey powder was a leavening agent. This being a question of fact, in our view, itself should not raise any substantial questions of law.
4. Nevertheless to the Memo of Appeal that was filed by respondent before the CESTAT, a communication dated 9th June 2014 from the Deputy Director General of Foreign Trade to office of the Commissioner of Customs (Export) has been annexed. The Minutes of Meeting dated 15 th November 2013 by a Norms Committee in the office of DGFT is also annexed. Both these documents state Sweet Whey powder may be used as leavening agent. If Sweet Whey powder could be used as leavening agent we cannot find any fault in the import made by respondent using duty free import authorization licence.
5. Mr. Subir Kumar brought to our attention an opinion dated 30 th November 2013 from one Dr. G. Subrahmanyam, Professor, Department of Biosciences and Bioengineering addressed to Additional Commissioner of Customs SIIB Export and submitted that said Dr. G. Subrahmanyam has opined that Sweet Whey powder cannot be used as a leavening agent. Purti Parab ::: Uploaded on - 29/06/2024 ::: Downloaded on - 14/07/2024 17:40:00 ::: 4/4 16.1-CUAPP-19-2022 & 21-CUAPP-22-2022.doc Again that would be deciding a question of fact and no substantial questions of law would arise. At the same time, in the said opinion it is stated as under :
"In response to your query on "whether the primary use of Sweet Whey powder is a leavening agent" I do not think so. It does not have the same effect as whey protein concentrates."
6. In our view said Dr. G. Subrahmanyam also is not certain whether Sweet Whey powder could be used as a leavening agent. He further states that it does not have the same effect as whey protein concentrates. That is not the subject matter of dispute and by saying it may not have the same effect which would only mean that it could be used but may not be so effective.
7. In the circumstances, in our view, no substantial questions of law arise.
8. Appeals dismissed.
(JITENDRA JAIN, J.) (K.R. SHRIRAM, J.)
Purti Parab
::: Uploaded on - 29/06/2024 ::: Downloaded on - 14/07/2024 17:40:00 :::