Per P. Karthikeyan : Revenue has filed this appeal against the Order-in-Original No. 20/99 (Commissioner) dt. 30.8.99 passed by the Commissioner of Customs, Trichy. In the impugned order, the Commissioner had dropped the proposals in the Show Cause Notice issued to M/s. Esjaypee Impex (P) Ltd., Chennai (i) to confiscate a consignment of 'Poppy seeds' imported by them from Pakistan in November 1998 in contravention of the prohibition in the Import Policy and (ii) to enhance the assessable value of poppy seeds from the declared value US $ 700 per M.T. to US $800 M. T. The appeal is directed against that part of the order not ordering confiscation of the consignment and not imposing penalty on the importer.

2. The grounds taken in the appeal are:-

(i) As per International Narcotic Control Bureau (INCB) Circular, export of opium poppy seeds was prohibited in 1997 and Pakistan was not known to be producing poppy seeds legally.

(ii) In taking the decision, the Commissioner had relied upon CEGAT Final Order No.968/99 dated 7.5.99 in the case of M/s. Diamond Traders Vs. Commissioner of Customs, Chennai reported in 1999 (33) RLT 747 (CEGAT)=1999 (111) ELT 921 (Tribunal). But he overlooked the CEGAT Order reported in 1999 (111) ELT 438 (Tri.)=1999 (111) ELT 438 (Trib.) in the case of the same party wherein the CEGAT had only reduced the redemption fine.

(iii) In view of the Circular of INCB, Pakistan was not known to be legally growing poppy seeds. Therefore, import should have been held as illegal and the goods confiscated.

(iv) The Central Narcotics Bureau (CNB) had reliably informed the department that Pakistan did not produce opium poppy seeds legally.

3. Heard both sides.

4. We find from the impugned order that during the material time, import of poppy seeds was restricted. Poppy seeds could be imported against a licence and on production of a certificate from competent authority of the country of origin to the effect that opium poppy was grown licitly in that country. The CNB had informed vide letter No.13/2/8TECH/98 dated 19.11.98 that Pakistan was not a country growing opium poppy seeds licitly as per international convention signed by them. Pakistan had banned export of poppy seeds since September 1997. The importer possessed specific licence to import poppy seeds from GCA countries which included Pakistan. As per Notification issued by the DGFT and Customs there was no requirement that the import should be from Pakistan and that the licencee should produce a certificate as regards country of origin from the competent authority. The importer had produced three certificates to show the licit growth of poppy seeds in Pakistan from,

(a) Ministry of Agriculture

(b) Export Promotion Bureau, Government of Pakistan, and (c) Chamber of Commerce and Industry, Peshawar.

Bank Certificate of Prime Bank, Peshawar had also certified that poppy seeds' export was permitted as per Export Policy of Pakistan (Tariff Item No.100590). Notification No.25 (RE 98) DGFT required that poppy seeds imported should have been grown licitly and was so certified by competent authority of that country concerned. The Tribunal vide Final Order No.968/99 dated 7.5.99 in the case of M/s. Diamond Traders Vs. Commissioner of Customs, Chennai, had decided that the certificate of licit production of poppy seeds imported in that case had been issued by three different independent authorities such as Chamber of Commerce and Industry, the Plant Quarantine Department in Ministry of Food, Government of Pakistan and the Export Promotion Bureau of Government of Pakistan, and the same was acceptable in proof of the legal cultivation of poppy seeds in Pakistan imported in that case. The Commissioner found that in the subject case certificates from the Export Promotion Officer, Export Promotion Bureau of Government of Pakistan, Ministry of Agriculture and Prime Bank or Peshawar and SAFTA certificate of Government of Pakistan all showed that the poppy seeds were from cultivatio