SUDIT IMPEX Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) THE appellants herein have imported a consignment described as 'dried garlic' and claimed classification under Customs Tariff Heading 0712.90. The import was from M/s. Asian Export Pvt. Ltd. Singapore. Goods were examined on first check basis and found to be garlic falling under CTH 0703.20 and not covered under CTH 0712.90 as claimed by the importers. The import of goods falling under CTH 0703.20 required a specific licence for their clearance and since the importers could not produce the specific import licence, the imported goods were confiscated with option to redeem them on payment of fine of Rs. 8 lakhs (value of the goods was little over Rs. 20 lakhs). In addition, a penalty of Rs. One lakh was imposed upon the importers under Section 112(a) of the Customs Act by the Adjudicating Authority; hence this appeal.

(2.) WE have heard both sides. We find that there is no material on record to arrive at the conclusion that the goods imported are garlic and not dried garlic. The import was prior to 17.9.99 which is when the DGTD issued a circular bearing No. 32(RE -99)/1999 -2000 on 17.9.1999 clarifying that if the moisture content of the garlic did not exceed 10% then the garlic is to be treated as dried garlic. In the case of import made prior to the circular, the Tribunal taken a view that a commercial parlance test is the best test for classification of goods and that the garlic being imported is understood as dry garlic by exporters of China and Singapore and importers in India as seen from J.B. Impex v. CC, Nhava Sheva . The Larger Bench of the Tribunal in the case of Dab Exporters has also held that the Circular of 17.9.99 is not retrospective in operation and does not apply to the imports made prior to the date of the circular and the imported goods, dried garlic in that case, were held not to require any specific import licence.

(3.) THE ld.SDR's reliance on importer's admission is misplaced for the reason that the letter dated 30.8.99 clearly sets out that the importers have imported dried garlic from China Origin from M/s South Asian Exports Pvt. Ltd. and that all import documents are mentioning dried garlic only, and they only accept the decision of the Customs authorities regarding this matter and requested for release of cargo to avoid demurrage and detention charges.