The central legal point established in the judgment is that the import of cosmetics is subject to specific restrictions and exemptions under the Drugs and Cosmetics Rules, 1945, and non-compliance with these provisions can lead to confiscation under the Customs Act, 1962.

JUDGMENT :

S.C. Gupte, J.

This Customs Appeal impugnes the order passed by the Custom, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai ("Tribunal"). The controversy in the appeal concerns confiscation of cosmetic goods imported by the Respondent as goods improperly imported, that is to say, imported or brought within Indian customs waters contrary to the prohibition imposed by law.

2. The Respondent imported cosmetics described as "Shower Gel, Roll on, Shampoo / Conditioner Shampoo, Shaving Gel, Hair Cream, Body Cream and Scented Spray" with declared value of Rs. 7,54,095/-, and filed a bill of entry, seeking assessment of the goods described as 'Cosmetics' under Chapter 33 of the Customs Tariff Act, 1975. A show cause notice was thereupon issued to the Respondent, inter alia claiming that, in terms of Rule 133 of the Drugs and Cosmetics Rules, 1945 ("Rules"), its import of cosmetics was improper, since the goods were not imported through points of entry specified under Rule 43-A of the Rules. After considering the reply and written submissions of the Respondent (despite an opportunity being given to them, the Respondent did not avail of personal hearing), the Comissioner of Customs, Customs House, Marmagoa, by his letter dated 18.11.2009, ordered absolute confiscation of the imported goods on the ground that the goods could not be allowed to be imported through Marmagoa Port. The Commissioner held that under Rule 133 of the Rules, read with Rule 43-A, the goods, which were cosmetics, could be imported only through points of entry specified under Rule 43-A, and Marmagoa not being a specified point of entry for import of these goods, the import was improper and the goods were liable to be confiscated on the ground that they were imported contrary to the prohibition imposed by law.

3. The Respondent carried the matter in appeal before the Tribunal. The Tribunal, by its impugned Order dated 23.12.2009, allowed the appeal and set aside the order of the Commissioner. The Tribunal's order essentially proceeds on the footing that the items imported by the Respondent were substances not intended for medicinal use, and were accordingly entitled to exemption under Rule 132 of the Rules. The Tribunal also considered the clarification purportedly issued by the Deputy Drug Controller by his letter dated 12.10.2009 that cosmetics, as specified in Schedule D, shall be exempted from the provisions of Chapter III of the Act and rules made there under, to the extent and subject to the conditions specified in that Schedule. The Tribunal held that the goods in question were covered by Entry No.1 of Schedule D and read with Rule 132 were entitled to exemption from the provisions of Chapter III of the Act and the Rules framed there under, and accordingly, could be imported freely from the Goa Port.

4. The Commissioner of Customs has carried the Tribunal's order in the present appeal. The appeal was admitted by framing the following substantial question of law (as corrected by us):

Whether 'cosmetics' as defined under Section 3(aaa) of the Drugs and Cosmetics Act, 1940 could not be hit by the restriction contained in Rule 133 read with Rule 43-A of the Drugs and Cosmetics Rules, 1945?.

5. When the Customs Appeal was called out for hearing on 14.03.2019, none appeared for the Respondent and the matter was stood over. The Appellant was directed to convey the order to the Respondent, making it clear inter alia that if the Respondent remained absent on the next date of hearing, the matter would be heard in its absence. The Respondent appeared on 27.03.2019, when, as and by way of last indulgence, two week's time was granted, making it once again clear that no further adjournment would be granted. The Respondent is absent today. The matter is, in the premises, heard exparte against the Respondent.

6. The Drugs and Cosmetics Act, 1940 ("Ac