M/S Indian Art Gallery vs Cc, New Delhi
- CitationAppeal No. C/367/2010-CU(DB)
Ratio decidendi
The rule this decision rests on
Where a sample drawn from a consignment tests positive for a prohibited substance, and the authorities then identify similar items from the same packet by examination, goods found to contain material prohibited for export are liable to confiscation under the Customs Act, 1962, and the exporter who attempts to export them is liable to penalty. An appellant who does not seek cross-examination of the authorities who conducted the test before the adjudicating authority cannot later assert in appeal that the testing was inadequate on the ground that no chemical or forensic analysis was performed; the absence of such analysis, without more, does not invalidate the test result, since the method of testing depends on its purpose. Confiscation extends only to those goods which the adjudicating authority has expressly ordered confiscated; where the order directs unconditional release of the remaining goods, those goods cannot be treated as confiscated on appeal, and the scope of the confiscation is determined by the operative order.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out Order-in-Appeal No. CCA/Exp/36/10 dated 15.4.2010 passed by the Commissioner, Customs (Appeals), New Delhi)
For Approval & Signature :
Honble Mr. Justice G. Raghuram, President
Honble Mr. R.K. Singh, Member (Technical)
1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it would 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 Department Authorities?
M/s Indian Art Gallery Appellant
Vs.
CC, New Delhi Respondent
Appearance:
None - for the Appellant
Shri B.B. Sharma, D.R. - for the Respondent
Coram : Honble Mr. Justice G. Raghuram, President
Honble Mr. R.K. Singh, Member (Technical)
F. Order No. 52602/2015
Per R.K. Singh:
Appeal is filed against the order in appeal dated 18.4.2010 which upheld the order in original dated 29.12.2009 in terms of which 41 shawls were confiscation under Section113(d), (e) and (l) of the Customs Act, 1962 and penalty of Rs.50,000/- was imposed on the appellant under Section 114 ibid.
2. The brief facts of the case are as under:
The appellant filed a Shipping Bill dated 4.12.2008 for the export of 1290 number of Pashmina and wool shawls falling under Chapter Heading 62142010 and declared C&F value of Rs.10,56,419/-. Those shawls which were of Dyed Pashmina Wool were marked for getting No Objection Certificate from Wildlife authorities. Accordingly, sample of five shawls from packet number 4 was taken up for testing in the laboratory of Wildlife Institute of India, Dehradun. The test confirmed the presence of hair to Tibetan Antelope in the said five shawls. The hair of Tibetan Antelope is listed at Sl No. 36A of Schedule 1 of the Wildlife (Protection) Act, 1972 and export of this item is prohibited. In the wake of this the consignment was examined 100% and 36 more shawls were identified by the Wildlife officer from the same packet No. 4 (from which the said five shawls were drawn as sample) to be similar to the said 5 shawls. The adjudicating authority thus confiscated the said 41 shawls under 113(d), (e) & (l) of the Customs Act, 1962 for being attempted to be exported and penalty of Rs.50,000/- was imposed.
3. When the case was taken up today for hearing there was no representation on behalf of the appellant nor was there any request for adjournment. Therefore we take up this appeal on merits.
4. In its appeal, the appellant has contend that the prohibition was application only to 41 shawls found in packet No. 4 which contained 249 other shawls and the adjudicating authority has not given any reasoning for confiscation of the rest of the shawls of packet No. 4. It also questioned the test report of the Wildlife authorities pleading that Wildlife authorities did not conduct any chemical analysis or any forensic analysis as the report was silent about that.
5. We have considered the facts of the case. As stated earlier, no one on behalf of the appellant appeared for personal hearing. We also find that in the reply to the Show Cause Notice the appellant did not seek any cross-examination of the Wildlife authorities. In its appeal it has stated that proper chemical analysis of the shawls was not conducted by wildlife authorities. The appellant has no basis to assert that when it did not seek any cross-examination of the wildlife authorities who tested the samples. There can be various ways to test a sample depending upon the purpose of test. In these circumstances, the order of confiscation of 41 shawls for containing material prohibited for export is sustainable. As regards the contention that other shawls (other than 41) found in packet 4 should not have been confiscated, we find that the primary adjudicating authority has ordered confiscation of only 41 shawls and has categorically stated I order for unconditional release of remaining shawls out of 1290 shawls seized along with their respective packet. Thus, it is obvious that the confiscation ordered by the primary adjudicating authority and upheld by the first appellate authority was only with regard to the 41 shawls. As 41 shawls were liable to confiscation on account of being attempted to be exported in spite of being prohibited for export, the appellant is clearly liable to penalty. The penalty of Rs.50,000/- imposed is neither unreasonable nor arbitrary.
6. In the light of the foregoing discussion, we do not find any infirmity in the impugned order warranting appellate interference. Appeal is dismissed.
(Justice G. Raghuram)
President
(R.K. Singh)
Member (Technical)
RM
1
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