SHAILESH DAMODIA Vs. COMMISSIONER OF CUSTOMS (EP), MUMBAI

JUDGEMENT

(1.) THE appeal is against the order of the Commissioner confiscating under the proviso of Clause (d) of Section 111 of the Act, a consignment each of streptomycin sulphate and amikacin sulphate. The consignments were found to be stored in the premises at Ghatkopar of Priyesh Damodia, the appellant's cousin. Priyesh Damodia attributed the ownership of the consignment to the appellant. The appellant, on being questioned by the officers said that he had been sent this consignment by a broker, Shantibhai located in Delhi for being sold on consignment account. He gave to the department the number of the cellular telephone of Shantibhai. It is not clear what enquiries the department made on Shantibhai. In the course of subsequent investigation, however the appellant produced to the department the delivery challan issued by Parekh & Co., Calcutta to cover the transport of these goods. Notice issued to this appellant proposed to confiscate the goods under Clause (d) of Section 111 on the ground that the import policy required a licence for importation which was not produced. The Commissioner has ordered the goods to be confiscated and redeemed on payment of fine and imposed penalty under Section 112 on the appellant.

(2.) THE contention of the counsel for the appellant is that the import policy at the relevant time permitted import of these goods by any person. The Commissioner has not accepted the contention raised before him by the appellant, that import of the goods was permitted by law. The argument runs as follows. Heading 29.41 of the Policy entitled ITC -HS classification of export and Import items for the period April 1997 to March 2002 dealt with antibiotics in heading 29.41. Heading 2941.20.00 reads "Streptomycin and their derivatives, salts thereof." Import of streptomycin listed in sub -heading 10 of this heading is restricted requiring a licence. Sub -heading 90 is for "other" and its import is free. Sub -heading 10 is for streptomycin. Sub -heading 90 would cover streptomycin sulphate and its import was therefore free. There is no specific entry in the Policy for amikacin and therefore will fall under the residuary 29419001.09 "Others". This entry mentions four products but not amikacin sulphate. It will therefore fall for classification under the residuary sub -heading 09 "others", import of which is again free.

(3.) THE contention of the appellant with regard to amikacin that it falls in the category of sub -heading "other" of the main heading "other" in 29419001 is acceptable. Amikacin is not specified in any of the sub -heading 2941 and therefore would fall in the entry of "other" which can be freely imported.