Vijay Solvex Limited And Raghuvar … vs Commissioner Of Customs … on 20 October, 2006

Customs, Excise and Gold Tribunal – Mumbai
Vijay Solvex Limited And Raghuvar … vs Commissioner Of Customs … on 20 October, 2006
Equivalent citations: 2007 (114) ECC 60, 2007 ECR 60 Tri Mumbai
Bench: J Balasundaram, Vice, A T K.K.


ORDER

Jyoti Balasundaram, Vice President

1. After hearing both sides for some time on the applications for Waiver of pre-deposit of penalties of Rs. 50,000/- each imposed on the appellants herein in terms of Section 112(a) of the Customs Act, 1962, we find that it was possible to dispose of the appeals themselves at this stage and hence proceed to do so after granting the prayer for waiver, and after allowing the applications for early hearing, with the consent of both sides.

2. The appellants in appeal C/1074/2006, Vijay Solvex Limited, placed two separate orders on M/s. V. Com Advance Engineering Technologies Pvt. Ltd. Sri Lanka for supply of aggregate quantity of 390 MTs of bakery shortening for delivery during the period December, 2005-January, 2006. They also placed two separate orders on M/s. Data Foods Private Limited, Sri Lanka for 650 MTs of bakery shortening for delivery during the period April, 2006 – May, 2006. Four bills of entry dated 23/12/2005, 07/01/2006, 18/04/2006 and 08/05/2006 were filed for their clearance. Being a food article, bakery shortening had to conform to the standards of hydrogenated vegetable oil (vanaspati ghee) as per the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the ‘PFA Act’) which prohibits imports of food adulterated, misbranded into India. Representative samples were drawn and sent for testing to Central Food Laboratory, Pune. The result of the analysis showed that the goods imported under bills of entry of December, 2005 and April, 2006 did not conform to the standard of bakery shortening as per the PFA Rules, 1955 as they failed on the melting point test, and that the goods covered by bill of entry dated 07/01/2006 failed on the free fatty acids test while the goods covered by the last bill of entry failed on baudouin test. Accordingly the goods were confiscated and permitted to be redeemed on payment of fine of Rs. 2 lakhs for the purpose of re-export only and a penalty of Rs. 50,000/- was imposed on the importers.

3. The appellants in appeal C/2824/2006, Raghuvar (India) Ltd., imported 281 MTs and 626 MTs of bakery shortening from the same suppliers as M/s. Vijay Solvex Ltd. and filed four bills of entry dated 07/02/2006, 10/02/006, 03/03/2006 and 08/152/006 for their clearance. The test carried out by CFL, Pune showed that the goods imported under the bills of entry dated 07/02/2006 and 05/03/2006 failed on the melting point test while the goods covered by the other two bills of entry failed on the melting point lest as well as on baudouin test and therefore the goods did not conform to the standards of hydrogenated vegetable oil (vanaspati ghee) as per the PFA rules. Accordingly, the goods were confiscated and permitted to be redeemed on payment of fine of Rs. 1,50,000/- for the purpose of re-export only and a penalty of Rs. 50,000/- was imposed on the appellants. Hence these appellants.

4. We have heard both sides.

5. We find that identical issues had come up for consideration before the Tribunal in the case of Ashapura Agro Oil Pvt. CC (Import), Sheva (Order No. A/907/WZB/2006/CSTB dated 04/09/2006) and Sachin Agarwal v. CC (Import), Sheva (Order No. A/890/WZB/2006/CSTB dated 04/09/2006) wherein identical goods were confiscated on the ground that they had failed the baudouin test and thus did not conform to the specifications laid down for hydrogenated vegetable oil as per the PFA Act and the appeals were remitted to the adjudicating authority with a direction that he should seek clarification from Port Health Officer and CFL, Pune to ensure that the goods are not adulterated and unfit for human consumption and directed that if such certificates are furnished then the goods should be allowed to be cleared after adjudication, in the light of the Bombay High Court decision in W.P. 2.325/2006 filed by Rich Kwality Products Pvt. Ltd and Anr. The Tribunal noted that vanaspati has a short shelf life and therefore directed that the above certificate should be obtained within one month from the receipt of the order.

6. Following the ratio of the Tribunal’s order cited supra we remand the cases to the adjudicating authority with a direction that clarification should be obtained from the Port Health officer and CFL, Pune that the samples are not adulterated and are fit for consumption and if so certified, allow the clearance of the goods after adjudication. The above certificate should be obtained within a period of one month from the receipt of this order due to the perishable nature of the goods in question.

7. The appeals are thus allowed by remand.

(Pronounced in Court on 20/10/2006)

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