ORDER
Gowri Shankar, Member (T)
1. The application by Ganesh International is for waiver of deposit of total duty of Rs. 63,82,644/- out of which Rs. 3,30,548/- relates to consignment currently for clearance and remainder for past clearance, and penalty of Rs. 11,50,000. Application by Gautam Overseas is for waiver of deposit of duty of Rs. 9,75,795/- and penalty of Rs. 2 lakhs. The duty has been demanded and penalty imposed, on the ground that the long pepper imported by the applicant is classifiable as a spice in heading 9.04 of the Tariff and not as a part of plant used primarily in pharmacy classifiable in heading 12.11.
2. Counsel for the applicant contends that long pepper (piper longum L) is which is different from black pepper is primarily used as an ayurvedic medicament and only as a minor culinary use. He relies upon the list under appendix V to Rule 5 under the Prevention of Adulteration Rules indicates black pepper a long pepper and indication in the book Indian Material Medica by Nadkarni and the book Wealth of India published by the Council of Scientific and Industrial Research which indicates its primary use as a medicament. This product is also indicated in the medicament in the import policy. He further contends that the explanatory notes to the Harmonised System of Nomenclature indicates certain part of this plant in heading 12.11. Therefore the product is more appropriately classifiable in that heading. He further contends that there has been no misdeclaration in justifying confiscation and penalty. The goods were described in the invoice and the bill of entry as “pippli” which is the Hindi name for long pepper. Sample of the goods had been submitted before the Asst. Controller who had permitted release on the view that the commodity was a crude drug. The bill of entry for the current consignment having been assessed and there being no misdeclaration, the question of reassessment will not arise.
3. The departmental representative contends that the essential use of the product which justifies its classification the use of it as a spice is not denied by the importer. By declaring the goods article by Sanskrit name, the applicant had tried to mislead the department.
4. The classification of the product is one which will have to be decided after going into considerable detail. At this stage, however there seems to be considerable merit in what the counsel for the applicant says. The books that he has referred to indicate the major use of the substance as a medicament. There is therefore prima facie no basis for confiscation of the goods or for the reassessment of the entry under consideration. It is somewhat difficult to accept that there is misdeclaration solely because the applicant described the goods by their Hindi name. It is not as if the majority of the appraising staff in the custom house conies from various parts of the country where Hindi or related languages are not used. In the context of a situation in which the government is actively encouraging the use of Hindi, basing misdeclaration on the use of this language is difficult to accept. The goods in any case had been examined by the Asst. Controller.
5. We also find prima facie substantial merit in the contention of the counsel for the applicant that there being no misdeclaration reassessment of the pending consignment which had been assessed finally could not have been resorted to without following the appellate procedure to set aside the order passed under Section 47 of the Act.
6. In this situation, on Ganesh International depositing of Rs. 17 lakhs and Gautam Overseas depositing Rs. 3 lakhs, we waive deposit of the remaining duties and penalties. On the applicant executing an undertaking to deposit the differential amount of duty on the live consignment, should the decision of the Tribunal go against permitted to clear the pending without any further deposit. Deposits to be made with two months from today.
7. Compliance of deposit to be reported on 7.10.2003.