MAHARASHTRA DISTILLERIES LTD. Vs. COMMISSIONER OF CUS.

JUDGEMENT

(1.) BY the impugned order, the Collector of Customs has inter alia held 15,664.50 bulk litres of goods described as "Undenatured Ethyl Alcohol (Malt Spirits plus or minus 59.3% Vol.)" imported by M/s. Finacord Chemicals Pvt. Ltd. and purchased by the appellants herein from whose premises the goods were seized are liable to confiscation under Section 111(d) and (m) of the Customs Act, 1962 appropriating a sum of Rs. 1,56,64,500/ - paid by the appellants in compliance with the order of the Hon'ble Bombay High Court as a condition for release and utilization of the goods by the appellants, towards differential duty recoverable under Section 125(2) and also appropriating a sum of Rs. 51,62,413/ - towards the value of the goods, which would have been leviable as redemption fine, if the goods had been available for confiscation.

(2.) WE have heard both sides. The appellants challenge the liability to confiscation of goods. We note that the confiscation of the goods under Section 111(m) has already been set aside by the Tribunal vide its order reported in 2003 (157) E.L.T. 537 in the case of the importers, M/s. Finacord Chemicals Pvt. Limited and M/s. S.R. Nagpal and Sons (India) which also set aside the duty demand arising as a result of undervaluation. Therefore, the appellants arguments are confined to the issue as to whether the goods are liable to confiscation under Section 111(d). It is their case that the goods are not concentrates of Alcoholic beverages but at the most can only be considered as concentrates alcohol and therefore, they are not covered by Entry 31 of Appendix 2B of the Exim Policy 1990 -93 requiring specific licence for their coverage for import and therefore, permissible for import under REP import licence produced by the importers. However, this issue has already been decided against the importers by the Tribunal vide its order cited supra wherein it has been held that the goods are overproof whisky as per ISI Standard to be considered as concentrates of alcoholic beverages in the light of the decision of the Tribunal in the case of M/s. Bussa Overseas and Properties Limited v. Commissioner of Customs (Import), Mumbai 2002 (148) E.L.T. 328 and therefore, covered by Sr. 31 of the Appendix 2B of the relevant Exim Policy, hence requiring specific licence for their import and since the importers produced REP import licences, which were valid only for the items covered by Appendix 3A of the Policy, the import was held to be unauthorized and the goods liable to confiscation under Section 111(d) of the Customs Act. The Collector has dealt with the arguments of the importers that the goods in question are not considered as concentrates of alcoholic beverage and also noted that the invoice dated 13 -12 -91 from the suppliers in Scotland viz., M/s. Morrison Bowmore (Scotch Whisky) Ltd., UK to the Brihan Maharashtra Sugar Syndicate Limited, Pune described the goods as whisky concentrates, that in trade parlance the product under reference is known as Alcoholic beverage as seen from the evidence relied upon in the show cause notice issued to the importers and the appellants herein. The findings of the Commissioner on the nature of the goods have been upheld by the Tribunal in the case of Finacord Chemicals cited supra.

(3.) THE decision in the case of M/s. Bussa Overseas and Properties Pvt. Ltd. v. Union of India holding that Ethyl alcohol was covered under Entry No. 165 of Appendix 3 Part A of the Exim Policy of 1984 -85 and hence REP licences produced by the importers were valid to cover the imports, was rendered in the context of Import -Export Policy prior to 1990 when Serial No. 218 of Appendix 3A was amended to read "Denatured Ethyl Alcohol" and not "Ethyl Alcohol" both denatured as well as undenatured. Therefore, Bombay High Court's decision cited supra is not applicable to the present case, as we are concerned with the period after the amendment in 1990. Further, it is pertinent to note that the High Court has held that Malt Spirit is nothing, but Whisky concentrate falling within the category of Ethyl Alcohol and this finding has been reiterated by the Tribunal in the case of Mewati and Company. Collector of Customs, Bombay - .