M/S. Karamhans Foods Pvt. Ltd vs C.C. (Icd)-New Delhi

[Arising out of Order-in-Original No.CCA/ICD/215/10 dated 16.12.2010 by the Commissioner of Customs & Central Excise (Appeals), New Delhi].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

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?

M/s. Karamhans Foods Pvt. Ltd. .Appellants

Vs.

C.C. (ICD)-New Delhi .Respondent

Appearance:

Shri S.S. Dawas, Advocate for the Appellants

Shri. D. Singh, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 21.01.2015

FINAL ORDER NO.50258/2015-CU(SM)

Per Ashok Jindal:

The appellant is in appeal against the impugned order for imposing redemption fine and penalty by allowing re-export of the goods.

2. The facts of the case are that the appellant imported one consignment of Shelled Almonds Kernels as it is an edible item. Therefore no objection certificate was required from health officer for goods are to be tested in the Central Food Health Laboratory in terms of para 2.2 of the Boards circular no.58/2001-Cus dated 25.10.2001. Representative samples were drawn and sent to the CFSL. The report describes that the sample shows damage / discolour units above the maximum prescribed limit and that sample is adulterated. In these circumstances, the adjudicating authority passed the order for re-export of the goods that held that goods are liable for confiscation. Consequently redemption fine and penalty were imposed. On appeal before the Ld. Commissioner (A) he dismissed the appeal filed by the appellant. Aggrieved from the said order appellant is before me.

3. The Ld. Counsel for the appellant submits that they are not disputing the test report conducted by CFSL and also not disputing the order of re-export of the goods. But they submits that as the adjudicating authority has allowed re-export of the goods, therefore redemption fine and penalty is not imposable as held by this Tribunal in the case of Central Marketing Agency Vs. C.C. (Airport), Calcutta-2004 (178) E.L.T. 601 Tribunal Calcutta. Therefore, he prayed that the impugned order qua imposing redemption fine be set aside.

4. On the other hand Ld. AR submits that as goods are adulterated and the same is prohibited as per the Food and Safety Adulteration Act 1954, therefore redemption fine and penalty has been rightly imposed on the appellant.

5. Head the parties. Considered the submissions.

6. Although in the case of Central Marketing Agency this Tribunal held that when the re-export of goods is allowed, in that case the redemption fine and penalty is not imposable but in the said case the item was transistors and it was found that there was a mis declaration of price. I find that in the case of Bio-Chemical Pharmaceutical Ltd Vs. C.C. Mumbai-2005 (186) E.L.T. 564 (Tri-Mum), wherein a case of import of drug this Tribunal held that in case of re export of the goods redemption fine was imposed to the extent of 1% of CIF value. Therefore, as it is a case of food item and having concern with the health of the society, therefore I hold that redemption fine is imposable on the appellant but same is reduced to 1% of the CIF value. In that case although redemption fine and confiscation was upheld but penalty was set aside. Therefore I set aside the imposition of penalty on the appellant.

7. In result redemption fine is reduced to 1% of CIF value of the impugned goods and penalty is set aside. Appeal is disposed of in the above terms.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

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C/53/2011-CU(SM)