ORDER
V.K. Ashtana, Member (T)
1. This is an appeal against Order-in-Original No. 11/99-CAU, dated 8-3-1999 passed by Commissioner of Customs confiscating poppy seeds imported from Pakistan and allowing by redemption fine of Rs. 11,00,000/- plus penalty of Rs. 1,00,000/- under Section 112A of the Customs Act, 1962,
2. Heard Shri Murugappan, ld. Advocate for appellants who submits as follows :-
(a) The goods were imported in Nov. 1998 and were accompanied by a certificate from the Export Promotion Officer, Export Promotion Bureau of Govt. of Pakistan certifying that the Foreign Exporters’ Declaration was correct. This was corroborated by another certificate from the Chamber of Commerce & Industry, Karachi stating that the goods were legally grown in Pakistan and were therefore of Pakistani origin. A third certificate dated 29-10-1998 was also submitted from the Quarantine Department at the Port of Karachi which has also been countersigned by the examining officer of Custom House, Karachi. This certificate also declares that the goods have been legally grown in Pakistan.
(b) Ld. Advocate also submits that Ld. Adjudicating authority on page 3 of the Order-in-Original impugned has himself come to a conclusion that merely because some packing material having Turkish markings, etc. it cannot be said that the goods was not of Pakistan origin.
(c) Ld. Advocate further submits that the only ground on which the goods have been held to be contraband is one Circular dated 30-11-1998 which refers to Resolution dated 29-9-1997 that Pakistan had banned export of Poppy seeds as no licit cultivation was taking place in Pakistan. Ld. Advocate submits that this was for the position obtaining in the year 1997 whereas the present imports are relating to 1998 and are covered by the certificates of both the Chamber of Commerce as well as the Govt. of Pakistan, duly countersigned by the Pakistan Customs authorities. Therefore, he submits that unless the department can proof that all these three certificates which corroborates one another are fraudulent or forged, they cannot be brushed aside only on the basis of a Circular of the International Narcotic Control Bureau (INCB).
(d) Ld. Advocate says that under Notification 25 (RE/98) the only condition for legally importing Poppy seeds is that the same should have been grown licitly. This has been amply evidenced by the three certificates submitted above.
3. Heard Shri S. Kannan, ld. JDR who submits that as per the communication received by Government from the International Narcotic Control Bureau as mentioned in the Order-in-Original impugned, there is no licit cultivation of Opium from which Poppy seeds are derived in Pakistan. Therefore, any consignment of Poppy seeds certified as originating from Pakistan would ipso facto deemed to be not original. He further submits that the certificates produced by the importers are, therefore, of suspected veracity. However, it has not been able to get their accuracy verified. He also submitted that in some packs there was markings to show that the goods were of Turkish origin. He therefore submits that there is no infirmity in the Order-in-Original and the same should be upheld.
4. We have carefully considered the records of the case and the rival submissions. We find that the only ground on which the import of this Poppy seeds has been held to have contravened law is that as per a circular of the INCB mentioned in the Order-in-Original, Pakistan is recognized internationally a non-producer of licit Opium and therefore of poppy seeds.
5. As against this, we find that the matter is governed by the Notification No. 25 (RE/98) of the DGFT and this Notification requires that Poppy seeds imported should have been grown licitly and was to be certified by the Govt. concerned. We find that nowhere in this Notification there is any condition that these goods originating from Pakistan or Afghanistan would be deemed to be of illicit origin. There is also no condition in the said notification incorporating any advice or regulation of the International Narcotics Control Bureau. As against this, the appellants have produced three certificates as noted above. These were produced at the time of import, and therefore, it cannot be said that these have been all stage-manipulated. Furthermore, the Order-in-Original impugned does not lead any allegation, let alone any evidence on the ground that these certificates are forged or fraudulent. We further find that these 3 certificates are from three different independent authorities namely the Chamber of Commerce, the Plant Quarantine Department under Ministry of Food, Govt. of Pakistan and the Export Promotion Bureau of Govt. of Pakistan, and each of them clearly carry a declaration that the goods are of Pakistani origin and all are from licit and legal cultivation. The appellants also have submitted that the INCB Circular relied upon by the ld. Commissioner related to the position in 1997, whereas these goods were imported in late 1998. Since the aforesaid notification lays down that the only test about licit cultivation of Poppy seeds in the country of origin would be one of certification by that country’s Govt. and we find that this has been complied with by the appellants in the form of certificates from Ministry of Food, Govt. of Pakistan which has also been countersigned by the examining officer of Custom House, Karachi, therefore, we find that taking a holistic view of the evidence on record, the balance of convenience clearly lies in favour of the importer. We also wish to be on record that in case the Govt. has clear intelligence and/or evidence that Pakistan and other specified countries are not allowed to cultivate Opium licitly, then the best course would have been to make such a specific announcement in the Import Policy through amending the present Notification referred to above. There is nothing on record to show that such a prohibition has been considered and imposed by the DGFT.
6. Under these circumstances, we find that the Order-in-Original impugned needs to be set aside and the appeal allowed with consequential relief. Ordered accordingly.