1. Harshadray N. Doshi, 51, Ezra Street, Calcutta-700001, shipping and clearing agentshad filed a revision petition to the Secretary, Govt. of India, Ministry of Finance (Dept. of Revenue), New Delhi, being aggrieved from Order No. 261A of 1979 dated the 30th November, 1979 passed by the Central Board of Excise & Customs, New Delhi. After coming into the existence of the Tribunal the said revision petition has been transferred to the Tribunal under Section 131B of the Customs Act, 1962 and is being disposed of as an appeal. The appeal was posted for hearing on the 12th day of July, 1984.
2. Shri A.K. Chatterjee, the learned J.D.R. had raised a preliminary objection that the revision petition is not signed properly as the appellant has not produced any power of attorney on behalf of the importers. The learned J.D.R. had pleaded that the importers are M/s.
Utkal Pesticides & Chemicals, Orissa, In the absence of any power of attorney the clearing agents could not sign. The same should be signed by any authorised person of M/s. Utkal Pesticides & Chemicals, Orissa.
On the request of the parties the appeal was adjourned to 22nd August, 1984 in the interest of justice.
3. Shri P.R. Biswas, the learned consultant, has appeared on behalf of the appellant and has pleaded that the clearing agents are authorised to sign the revision petition. He has referred to Section l47 of the Customs Act, 1962 and has pleaded that where the Customs Act, 1962 requires anything to be done by the owner, importer or exporter of any goods, it may be done on his behalf by his agent. He has pleaded that in the instant case the revision petition was signed by the clearing agents as agent of the importers. He has also referred to Regulation No. 16 of the Custom House Agents Licensing Regulations, 1965.
Regulation No. 16A says that a Custom House Agent shall farnish, whenever required by the Assistant Collector of Customs, an authorization from each of the firms or persons by whom he is, from time to time, employed as their Custom House Agent to act as such Custom House Agent. He has pleaded that in the instant case there is no dispute as to the signing of the revision petition. He has referred to a judgment of the Special Bench reported in 1983 E.L.T. 583. In the said case the appeal was dismissed as the same was not signed properly and nowhere there was any mention of the name of the importer. In the instant case, he has pleaded that there is mention of the name of the importer on the top of the revision application, viz.
"Importers...Utkal Pesticides & Chemicals, Berhampore, Orissa". He has further pleaded that Shri K.L. Choudhury, a partner of Utkal Pesticides & Chemicals is very much present in the Court and has stated that he has been authorised by the partner of the firm, Utkal Pesticides & Chemicals, Berhampore, Orissa and has also filed a power of attorney signed by Shri K.L. Choudhury in favour of Shri P.R. Biswas. Shri Choudhury has stated in the Court room that he had duly authorised the clearing agents to sign the revision petition on behalf of the firm.
Shri Biswas has pleaded that in view of the provisions of Section 147 read with Regulation No. 16 of the Custom House Agents Licensing Regulations, 1965, the revision application signed by the clearing agents should be accepted. He has distinguished this revision petition from the judgment of the CEGAT in 1983 E.L.T. 583. He has pleaded that principally his case is fully covered by the said judgment of the CEGAT. He has laid special emphasis on Para No. 12 of the said judgment.
4. Shri A.K. Sarkar, the learned S.D.R., has appeared on behalf of the Revenue. He has stated that he has got nothing to say and has got no objection as to the acceptance of the factum that the revision petition has been signed properly by the clearing agents.
5. After hearing both the sides I hold that the revision petition was properly signed. I have come to this conclusion in view of the admission made by Shri K.L. Choudhury, partner of the importer firm viz., Utkal Pesticides & Chemicals, Berhampore, Orissa.
6. On merits briefly the facts of the case are that Utkal Pesticides & Chemicals, Station Road, Berhampore, Orissa had imported 16 drums .Dicofol Technical 78% valued at Rs. 1,02,645.21 under Bill of Entry, Line No. 147, Rot No. 327/77 Ex. M.V. MURRAYEVERETT. The importer had submitted a licence which permits importation of inter alia Dicofol. In terms of notes under List VI, of Appendix 28 of Red Book, Vol. 1, 75-76, import of Dicofol is allowed to actual users only in "Commercially Pure Form". On test of the goods by the Custom House laboratory it was found that the goods do not conform to the specifications of "Commercially Pure Form", and as such the goods had been imported in contravention of Clause '3(1) of the Import Control Order, 1955 as amended read with Section 3 of the Imports and Exports (Control) Act, 1947 as amended. A show cause notice was issued to the importer vide letter dated 23rd September, 1977 to show cause why the offending goods should not be confiscated under Section 11 l(d) of the Customs Act, 1962 and why penalty should not be imposed on the party under Section 112 ibid. In reply to the . show cause notice the appellant requested for retest of the sample by other chemical laboratory as they do not agree with the test result of the Custom House laboratory. A representative sample was then sent to the Central Revenues Chemical Laboratory, New Delhi for retest. The report from the Chief Chemist also confirmed that the sample is Dicofol of 78.8% purity and since the minimun percentage of purity for commercially pure form Dicofol is 82%, the sample under reference does not qualify as Dicofol in "Commercially Pure Form". The Revenue had informed the imported of the findings of the retest report. The importer had contended that the licence was specifically for Dicofol and without any qualification like "Commercially Pure Form" technical etc. The learned Collector did not accept the contention of the appellant and he had confiscated the goods. However, he had given an option under Section 125 to clear the goods on payment of a redemption fine of Rs. 10,300. Being aggrieved from the aforesaid order the appellant had gone in appeal before the Central Board of Excise & Customs, New Delhi. The Central Board of Excise & Customs had held that 82% is the correct form and in the instant case the purity was about 78%. The Hon'ble Board had rejected the appeal of the appellant. Being aggrieved from the aforesaid order the appellant has come in appeal before this Court.
7. Shri P.R. Biswas, the learned consultant has reiterated the facts stated above. He has referred to the Policy book for April, 1975 to March, 1976 and has referred to Item No. 19 of Appendix 28 which appears on page 218 of the said Policy Book. He has also referred to the Invoice on which it has been mentioned that 3893 Kg. Dicofol Technical 78%. Lastly he has referred to the detailed chemical definition of Dicofol from the book "PESTICIDE " issued by the British Crop Protection Council, Fourth Edition, page 189. The same is reproduced as under :- "Dicofol is the common name approved by BSI and by ISO, except Austria and Germany, for 2,2,2frichloro-l, l-di-(4-chlorophenyl) ethanol, in C.A. usage 4-chloro-x-(4-chlorophenyl)-x-(trichloromethyl benzene [115-32-3] formerly 4, 3-dichloro-x-(trichloromethyl) benzhydrol; also known as l,l-bis(chlorophenyl)-2,2,2-trichloroethane". The acaricidal properties of this compound were first described by Barker, J.S. and Maughan, F.E.L.T ecan, Ent, 1956,49.458 and it was introduced, in 1955, by the Rohm & Haas Company under the code number 'FW-293', trade mark 'Kelthane' and the protection of BP 778, 209; USP 2,812,280; 2,812,362; 3,102,070; 3,194,730.
It may be made by (a) the chlorination of l,l-di-(4-chlorophenyl) ethanol (ehlorfenethol); Renter, S. and Ascher, K.R.S., Experimentia, 1956, 12, 316, or (b) the reaction of l,2,2,2-terachloro-l,l-di-(4-chlorophenyl) ethane with silver acetate and hydrolysis of the resulting ester; Bergmann, E.D. and Kaluszyner, A., F. org. Chem., 1958, 23, 1306.
The pure compound is a white solid of m.p. 78.5 to 79.5C. The technical product is a brown viscous oil, about 80% pure, of d 1.45. It is practically insoluble in water but soluble in most aliphatic and aromatic solvents. It is hydrolysed by alkali to the dichlorobenzophenone and chloroform but is compatible with all but highly alkaline pesticides. Wettable powder formulations are sensitive to solvents and surfactants which may affect acaricidal activity and phytotoxicity.
Dicofol is a nonsystemic acaricide with little insecticidal activity, recommended for the control of mites on a wide range of crops at concentrations from 0.5 to 4.0 lb a.i/acre. Although residues in soil decrease rapidly...or more.
The acute oral LD50 for male rats is 809 33 mg/kg, for female rats 68416mg/kg; the acute dermal LD50 for rabbits is 1,870 mg/kg. Dogs were fed one year on a diet containing 300 ppm with no evidence of toxicity; Blackwell Smith, R.et al., Toxic, appl. Pharmac, 1959,1,119.
Formulations: 'Kelthane AP', 18.5% w.p.; 'Kelthane 35', 35% w.p.; 'Kelthane EC, 18.5% e.c; 'Kelthane MF', 42% e.c; 'Kelthane Dust Base', 30%.
For product analysis, determine hydrolysable chloride and correct for ionic chloride. Residues may be estimated from (a) the chloroform produced by hydrolysis, using the Fujiwara reaction; Rosenthal, I. et al., F.agric. Fd Chem., 1957,5,514; (b) the phenone produced by hydrolysis, measuring absorbance at 264 mm; Gunther, F.A. and Blinn, R.C., ibid., p. 517; (c) by GLC: Seba, D.B. and Lane, C.E., Bull, Environ. Contam, Toxicol., 1969,4,297." He has pleaded that there is no contravention of the Import Trade Control Policy and has pleaded that the appeal of the appellant should be accepted.
8. In reply Shri A.K. Sarkar, the learned S.D.R. has pleaded that the only question in the instant case is that whether the 78% Dicofol should be accepted as 'Commercially Pure Form' or not. He has pleaded that there is a scope for leniency.
9. In reply Shri P.R. Biswas, the learned consultant has pleaded that though the fine imposed is Rs. 10,300/ but the appellant had paid demurrage to the tune of Rs. 45,073.83 and as such the penalty was about 50%. He has pleaded that the penalty is very excessive. Lastly he has referred to a judgment of the Bombay High Court in the case of Pidilite Industries Pvt. Ltd., and Ors. v. Government of India reported in 1983 E.L.T. 46 wherein it was held that 'If the Chief Chemist gave the opinion to subserve the interests of revenue, then it would be worthless to rely upon such report.' He has pleaded for the acceptance of the appeal.
10. After hearing both the sides and going through the facts and circumstancts of the case I would like to observe that neither the appellant nor the respondent have cared to file copies of the Chemical Examiner's report. As per invoice the purity of the imported item viz., Dicofol is 78% and as per definition filed by the appellant it is 80%.
So in any case the imported item cannot be accepted in the Commercially Pure Form. The value of the 16 drums Dicofol Technical is Rs. 1,02,645.41 and the learned Collector had imposed a fine of Rs. 10,300.00 which is just 10%. The argument of the learned consultant that the demurrage to the tune of Rs. 45,013.83 was paid by the appellant does not help him. The learned S.D.R's. argument that the leniency may be considered is also not tenable. I feel that the Revenue authorities while choosing the quantum of fine in lieu of confiscation is very lenient and reasonable. Accordingly, I hold that the importation is not covered by the import licence and is in contravention of the Import Trade Control Policy. I "uphold the findings of the lower authorities. The appeal is dismissed.