ORDER
J.N. Srinivasa Murthy, Member (J)
This is the party’s appeal against the Impugned Order No. 334/94 BCH in File No. S/49-67/94 LIC, dated 9-5-1994 of Collector of Customs (Appeals), Bombay praying for setting aside the same, and for clearance under OGL without insisting for End use evidence, without any fine and penalty, treating it as consumer goods.
1. The facts of the case are, that the appellants have imported ‘Star Aniseed’ under the Bill of Entry No. 177, dated 1-10-1992, having assessable value of Rs. 1,51,409/-. It can be used for making of ayurvedic/unani drugs, in which case the import of these have to be treated as crude drugs. They are also used as spices and have various uses. While importing appellant gave an end-use bond backed by 25% Bank Guarantee stating that Star Aniseed would be used for manufacturing of Ayurvedic/Unani drugs. Even after 11 months he failed to produce any evidence in that regard. On 13-8-1983 a Notice was issued, and asked to appear for personal hearing on 24-3-1993, and at the request of its Counsel was adjourned to 7-9-1993, and was ultimately held on 8-9-1993. He sought for four weeks times to produce evidence, and also submitted identical issue is pending before CEGAT, and the matter may not be taken up. The Additional Collector of Customs, Group-I after perusing the records and hearing the appellant through its Counsel, passed the Order-in-Original on 8-9-1993, confiscating the imported 6815 kgs of Star Aniseed under Section 111(d) of Customs Act with redemption fine of Rs. 75,000/- and imposed penalty of Rs. 20,000/- under Section 112(a) of Customs Act. On appeal by the appellant, the Collector of Customs (Appeals), Bombay has rejected by the impugned order. Hence this appeal.
2. Shri S.N. Kantawala, the Id. Counsel for the appellant has argued that when the goods are cleared, confiscation order is not tenable. There is no finding of contravention of any law or evasion of duty. Penalty is very harsh. Redemption fine is also very high. They require modification. The learned D.R. Shri S.V. Singh has argued that the appellant did not produce goods. In terms of bond executed, redemption fine can be imposed. Appellant has neither produced evidence of end use of Star Aniseed, nor replied notice. Looking to the value of goods at Rs. 1,50,000/- and odd, both penalty and fine is proper. In the course of reply it is urged that as per Exhibit “E” and “F”, there is no prohibition after use and under Section 111(d) of Customs Act confiscation vitiates.
3. Whether this is a fit case to reduce redemption fine and penalty? My finding is in the Para 5.
4. Perused the Exhibit ‘A to F’ as per the Index of the appeal memorandum and also appeal memorandum. They are carefully concerned. Arguments of both sides are also taken note while considering the case. Import of 235 bags (6815 kgs.) of Star Aniseed is involved. The appellant, admittedly has imported the above goods under Bill of Entry No. 177/1-10-1992 (IGM 1983/11) valued at Rs. 1,49,910/- C.I.F. per S.S. Vega, stating that it will be used for making Ayurvedic/Unani drugs, and gave end use bond backed by 25% guarantee, but has failed to produce evidence to that effect, as under took even till 8-9-1993 personal hearing, after notice was issued on 13-8-1993. Even now, the appellant has not produced the same. So from this, it is clear that there is a breach of condition undertaken. The goods were got cleared by the appellant, on the ground of heavy demurrage, on executing an end use bond, under taking to produce the evidence of use of goods, as Crude Drugs. As per the orders of lower authorities, and even as per the appellant, Star Aniseed imported is not used for the purpose for which it was imported. As per Exhibit ‘E’ 18-9-1992 letter of Dy. CCI & E it tan be imported freely as crude drug provided it is required for making Ayurvedic/Unani medicines, which is not established by the appellant in this case. Exhibit ‘F’ letter 10-8-1992 of Dy. CCI & E applies only to crude drug. If star Aniseed is to be treated on such, it should be required for the manufacture of Ayurvedic/Unani Medicine. In this case it is not shown. So, the appellant cannot derive benefit of clarification in Exhibit ‘F’ that no actual user condition is applicable, and it can also be imported by any body for stock and sale purposes subject to compliance with other laws for the time being in force”. Even these conditions the appellant has failed to fulfill it. As per the literature of Star Aniseed it is seen that it can also be used as spice. Exhibit ‘D’ extract from Indian Materic Medica. It’s usage as spice with food is also indicated, apart from its medicinal use. Since the appellant has failed to show the import as crude drugs the only other alternative is as spice with food, which meets the requirement of human need directly, amounting to consumer goods. So Para 156 of the Policy is not applicable to these cases as import is not as crude drug. The discussion and findings of the lower authorities is proper and correct. The appellant having committed breach of the condition as discussed above cannot take advantage of his own wrong, in challenging the confiscation. There is violation of the Policy condition as held by lower authorities. Having imported Star Aniseed with specific purpose, and failed to satisfy the condition undertaken and on the ground of heavy demurrage, got the goods released under bond, now the appellant cannot turn round and say that he is not liable for personal penalty, and the goods not liable for confiscation. When the import of goods, held as consumer goods, the policy requires licence/which is evaded by the appellant taking shelter under the ground that the goods imported is required in the manufacture of Ayurvedic/Unani drugs, and ultimately failed to produce the evidence of end use. So the order of the lower authorities is sustainable. Confiscation and penalty is justified.
5. The appellant has appealed for lineancy in the fine and penalty. The appellant has not submitted about the result of the identical case relating to the facts and circumstances of the case. I feel the ends of justice will be met by reducing the redemption fine and penalty as follows. Point raised is answered in the affirmative only to that extent, and negative for the rest. Hence I pass the following order.
ORDER
For the reasons indicated above, the appeal is allowed in part, in modifying the orders of lower authorities by reducing redemption fine from Rs. 75,000/- to Rs. 50,000/- and penalty from Rs. 20,000/- to Rs. 10,000/-. With consequential relief, according to law.