Document Fragment View

Matching Fragments

10. According to the appellant, an NOC from the Narcotics Commissioner was not required because it had not imported MEK but only imported certain goods which contained MEK and as per the RCS Order, there is no requirement to obtain NOC for their import. According to the appellant, the imported

9. NDPS Act

10. RCS Order 7 C/51787 OF 2021 goods, being inks and ink consumables, deserve to be classified under Chapter 32 of the Customs Tariff.

17. Learned counsel submits that the short issue to be decided is if import of the disputed goods which contain MEK requires an NOC from the Narcotics Commissioner as per the RCS Order. Consequently, whether the appellant violated the RCS Order and whether the goods were liable for confiscation under section 111(d) of the Customs Act and whether the appellant was liable to penalties.

10 C/51787 OF 2021

18. Even before importing the imported goods, the appellant had met the Narcotics Commissioner on 11.6.2015 and submitted a representation on 8.6.2015 stating that the inks which they import contain MEK ranging from 35% to 90% and seeking clarification if any NOC is required for their import under the RCS Order. The appellant followed it up with reminders. No reply was received and hence they had filed Writ Petition No. 10730 of 2017 in Bombay High Court and the High Court passed order dated 13.10.2017 directing the Narcotics Commissioner to decide on the representations of the appellant. Thereafter, the Narcotics Commissioner passed an Order dated 3.11.2017. In this order, the Narcotics Commissioner recorded clearly that „preparations of MEK are not covered by the RCS order‟ in paragraph 13 which reads as follows:

"13. It is nobody‟s case that preparation of MEK are covered under the scope of RCS order, the whole dispute is whether the items which contains MEK will be considered as MEK per se or as preparation of MEK. The plain reading of definition of "preparation" gives an impression that irrespective of percentage of drug/precursor chemical, an item is a "preparation" even if it contain quiet a high concentration of even 1 gram of sugar in a litre of water would be termed as sugar solution, though such a solution w8ill not have any distinct characteristics of sugar. Therefore, literal meaning of term preparation should not be adopted to resolve the present dispute specially when the whole purpose of RCS order is to exercise control over the substances which are capable of being misused for manufacture of narcotic drug and/or psychotropic substance. Looking at this ambiguous position, I am of the 11 C/51787 OF 2021 opinion that a reasonable and logical meaning has to be discerned from the definition of "preparation" to take a proper view".

19. After clarifying that preparations of MEK are not covered by the RCS Order, however, the Narcotics Commissioner passed the order stating "In view of this position, considering the larger purpose behind framing of RCS Order, 2013 to regulate trade of precursor chemical (which are capable of being used for manufacture of Narcotic Drugs or Psychotropic Substances), I hold that for the purpose of interpretation for scope of term MEK in RCS Order, 2013, principles as mentioned in Para 14 of Article 12 of the said Convention should be adopted i.e., NOC will be required if MEK is present in any item and such MEK can either be extracted from such item and/or such an item can be used in place of MEK (may not be as efficiently as MEK) for manufacture of Narcotic Drug or Psychotropic Substances."