2009(07)LCX0454

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI

S/Shri Ashok Jindal, Member (J) and A.K. Srivastava, Member (T)

Pankaj Kumar & Co.

Versus

Commissioner of Customs (Import), Mumbai

Stay Order No. S/281/2009-WZB/C-II/(CSTB), dated 13-7-2009 in Application No. C/S/275/2009 in Appeal No. C/147/2009

Cases Quoted -

Commissioner v. Devanshi Impex Pvt. Ltd. - 2006(10)LCX0103 Eq 2007 (208) ELT 0099 (Tribunal) - Relied on [Para 4]

Departmental Clarification Quoted-

C.B.E. & C. Circular No. 61/2004-Cus., dated 28-10-2004 [Para 2]

C.B.E. & C. Circular No. 37/2005-Cus., dated 6-9-2005 [Para 2]

Advocated By -

Shri H.R. Shetty, Advocate, for the Appellant.
Shri B.P. Pereira, SDR, for the Respondent.

[Order]. -

This stay application is filed by the appellant against the impugned order confirming imposition of redemption fine of Rs. 6 lakhs and the penalty of Rs. 5 lakhs on the applicant and classification of the goods i.e. Thiourea 99% under CTH 3808.


2. The brief facts are that the applicant had imported four consignment of Thiourea 99% and filed Bills of Entry, which were assessed by the Department and out of charge was also given to the applicant. However, later on it was observed that the goods Thiourea is included in the Schedule 7 Insecticides Act and as such requires registration with Centre Insecticides Board and Import Permit in terms of Section 17 of the Insecticides Act. A show cause notice alleging that the imported goods are hit by the Board's Circular No. 61/2004-Cus., dated 28-10-2004 and No. 37/2005-Cus., dated 6-9-2005 thereby registration and import permit issued by the registration Committee is mandatory for import of such goods and the same is classifiable under Customs Tariff Heading 3808 and called upon the applicant to show cause as to why:

(a) The imported goods should not be classified under Custom Tariff Heading 3808.

(b) The imported goods should not be confiscated under Section 111(d) of the Customs Act, 1962. However, since the goods have been cleared why the redemption fine should not be imposed on the appellant.

The redemption fine and penalty were imposed and the same were confirmed in Order-in-Appeal. Aggrieved by the same, the applicant filed an appeal along with this stay petition.


3. The Ld. Counsel for the applicant drew our attention to Exhibit 'N' annexed with the appeal paper, wherein the applicant made a request to the Government of India, Ministry of Agriculture, to issue a NOC for import, stock, purchase and sale of Thiourea 99% for industrial use and for non-agricultural use and further to Ex. 'O' dated 7-12-1998, wherein in reply to Exhibit 'N', the Administrative Officer of Central Insecticides Board & Registration Committee intimated to the applicant that the said NOC is not required.


4. He placed reliance on the case law in the case of Commissioner of Customs, Nhava Sheva v. Devanshi Impex P. Ltd. reported in 2006(10)LCX0103 Eq 2007 (208) ELT 0099 (Tri. - Mumbai), wherein this Tribunal prima facie held that the Thiourea 99% is specifically covered by Customs Tariff Heading 2903 90 10 and the stay petition of the Department was rejected.


5. Heard.


6. On perusal of the records, we find that prima facie the applicant has made out a strong case in his favour. Accordingly, the complete waiver of pre-deposit of redemption fine and penalty is granted till final disposal of this appeal.

Equivalent 2009 (248) ELT 0417 (Tri. - Mumbai)