Custom, Excise & Service Tax Tribunal
Icd, Tkd, New Delhi vs Dr. Roshanlal Aggarwal & Sons Pvt. Ltd on 5 February, 2009
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL NEW DELHI PRINCIPAL BENCH COURT NO. 1 Customs Appeal No. 468 of 2008-SM (Arising out of Order-in-Appeal No. CC(A)/Cus/33034/ICD/PPG/D-II/08 dated 31.01.2008 passed by the Commissioner of Customs (Appeals), Delhi). DATE OF HEARING : 05.02.2009 DATE OF DECISION : 05.02.2009 FOR APPROVAL AND SIGNATURE : HONBLE MS. JYOTI BALASUNDARAM, VICE-PRESIDENT 1. Whether Press Reporters may be allowed to see 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ? 3. Whether their Lordships wish to see the fair copy of the Order ? 4. Whether Order is to be circulated to the Departmental Authorities? ICD, TKD, New Delhi Appellant (Rep by Sh. Sansar Chand, DR) versus Dr. Roshanlal Aggarwal & Sons Pvt. Ltd. Respondent
(Rep. by Sh. S. Vyas, Adv.) CORAM : HONBLE MS. JYOTI BALASUNDARAM, VICE- PRESIDENT ORDER NO._______________________________ PER JYOTI BALASUNDARAM :
[ The Revenue is aggrieved by the order of the Commissioner (Appeals) who has held that the respondents herein, who had imported Homeopathic Medicines, had not violated the Port restrictions in respect of import of drugs under Rule 43A of Drugs & Cosmetic Rules, 1945, which prescribes certain ports, namely, Madras, Calcutta, Bombay, Cochin and Nhava Sheva, for import of drugs by sea. According to the Revenue, drugs were cleared at ICD, Patparganj, Delhi, and are hence to be treated as having been imported by sea into India through a port other than prescribed one. The case of the importer, which has been accepted by the lower appellate authority, is that the import was through Nhava Sheva and subsequent clearance from ICD, Patparganj, Delhi, does not alter the fact of import through a prescribed port, namely, Nhava Sheva.
2. I have heard both sides. It is a fact that bills of entry show that the goods were imported through Nhava Sheva. Although the goods were ultimately cleared from ICD, Patparganj, Delhi, the requirement of the Notification is that drugs imported by sea into India are to be imported through certain ports including Nhava Sheva. Therefore, the contention of the importer that the import is to be treated as through Nhava Sheva, which is a prescribed port, and hence they have not violated the port restrictions provided under Rule 43A is required to be accepted. Reliance placed by the learned DR on the Honble Apex Courts decisions in Union of India vs Apar Pvt. Ltd., 1999 (112) ELT 3 (SC) and Commissioner of Customs, Calcutta vs Biecco Lawrie Ltd., 2008 (223) ELT 3 (SC), is misplaced as the judgments are not applicable to the facts of the present case as the issue therein was as to the relevant date for rate of duty in terms of Section 15(1) and Section 68.
3. In view of the above discussion, I uphold the impugned order of Commissioner (Appeals) and reject the appeal of the Revenue.
(Dictated and pronounced in the open Court on the 5TH day of February, 2009) (JYOTI BALASUNDARAM) VICE-PRESIDENT Golay