Bombay High Court
Glamstone Cosmetics Pvt. Ltd. Thr … vs The Union Of India And Ors on 9 March, 2026
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
WP957_2026.DOC
2026:BHC-AS:11564-DB
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 957 OF 2026
Glamstone Cosmetics Pvt. Ltd., through its
Director Amit B. Dhanuka ... Petitioner
Versus
1. The Union of India
2. The Intelligence Officer, The Directorate of
Revenue Intelligence,
3. The Deputy Commissioner of Customs
[Import Bond Section]
4. The Assistant Commissioner of Customs
Group - 2 (C-F) ... Respondents
_________
Dr. Sujay Kantawala a/w. Mr. Aditya Talpade, Mr. Pratik Karande, Ms. Diksha
Talpade, Ms. Prajwal Padole, Mr. Akash Sable, Ms. Aishwarya Kantawala for the
petitioner.
Mr. Jitendra B. Mishra a/w. Ms. Sangeeta Yadav, Mr.. Ashutosh Mishra, Mr.
Rupesh Dubey for the respondent.
Mr. Shalabh Katiyar, Addl. Director, DRI present.
Ms. Veenu Kavaria, Deputy Director, DRI present.
__________
CORAM : G. S. KULKARNI &
AARTI SATHE, JJ.
RESERVED ON : 4 MARCH 2026
PRONOUNCED ON : 9 MARCH 2026
JUDGMENT (Per G. S. Kulkarni, J.)
1. This petition under Article 226 of the Constitution of India raises an
interesting issue, as to whether the cosmetics in question, subject matter of the
Bills of Entry filed by the petitioner for warehousing and alleged not to be meant
for home clearance, would suffer an embargo for a re-export and proceedings for
confiscation under the provisions of Section 111 of the Customs Act, 1962 (for
short “Customs Act“).
2. The relevant facts are required to be noted : The petitioner is stated to be
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engaged in the import and trading of cosmetics (perfumes, glow and lovely cream,
Taft Hairspray, toothpaste, shampoo, conditioner, shower gel, luxury perfumes
etc.) and FMCG (Fast Moving Consumer Goods). In the month of November,
2025, the petitioner imported three consignments of cosmetics and FMCG. It
filed Warehousing Bills of Entry qua these consignments, in November, 2025.
3. It is the petitioner’s case that these goods were never intended to be cleared
for home consumption, for the reason that as for home consumption, a regulatory
approval was necessary, of the petitioner requiring a Central Drugs Standard
Control Organization (CDSCO) license. The petitioner had applied for such
license on 5 May, 2025 with the Competent Authority under the Drugs and
Cosmetics Act, 1940. Admittedly the petitioner has not been granted the
CDSCO licence qua the goods in question. This is also not the case of the
petitioner that the goods in question would be intended to be cleared on any prior
license obtained by the petitioner.
4. The petitioner has contended that a decision to bring the goods into India
from the port of origin, i.e., UAE was to warehouse the goods in India, as the
warehousing expenses in UAE were three times more than what was payable in
India. Hence it was thought feasible to shift the goods to India and thereafter re-
export the same, which would enable the petitioner to earn substantial profits. It
is contended that this is a perfectly legitimate and acceptable business practice.
The petitioner has contended that filing of Warehousing Bills of Entry itself
negates any inference, that the petitioner intended to clear the goods for domestic
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consumption. It is stated that the goods upon landing were accordingly shifted to
the nominated Container Freight Station (CFS), i.e., New Maersk CFS and
thereafter, they were assessed by respondent no. 4.
5. The petitioner contends that the Warehousing Bills of Entry were thus
filed only to hold the goods in bond, pending regulatory clearance, which also
negated any alleged intent to evade customs duty or misuse the goods. The
warehousing scheme exists precisely to enable such lawful holding of goods
pending compliance. It is the petitioners case that however the goods came to be
seized by respondent no. 2 under a Seizure Memo dated 26 November, 2025
issued under Section 110 of the Customs Act.
6. The petitioner to save the detention and demurrage charges made a
specific request to the Deputy Director, Directorate of Revenue Intelligence,
Nhava Sheva, Mumbai Zonal Unit to permit the petitioner to move the
goods/containers from CFS to a Public bonded warehouse. This request was
granted by the said officer on the condition that the goods/containers be kept on
hold at the bonded warehouse and under 24X7 CCTV surveillance and not
permitted to be removed, parted with or otherwise dealt, in any manner, except
with the prior written permission of the Deputy Director, DRI, Mumbai Zonal
unit. It is the petitioner’s case that the petitioner’s Director Mr. Amit
Bhagwatiprasad Dhanuka attended the office of respondent no. 2 who recorded
his statement, when he informed the concerned officials that the goods were
meant for re-export, as the CDSCO license was yet to be received by the
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petitioner, hence, there was no other option but to re-export the goods.
7. As the goods were not permitted to be re-exported and kept under seizure,
the petitioner made a representation to respondent no. 2 for grant of an NOC for
allowing re-export. However, no action was taken on the said representation. It is
in these circumstances, the present petition has been filed praying for the
following substantive reliefs:
“a) That this Hon’ble Court be pleased to issue a Writ of Certiorari or any
other writ, order or direction under the Article 226 of the Constitution of
India calling for the records pertaining to the petitioners’ case and after going
into the validity and legality thereof, to quash and set aside the impugned
seizure memo dated 26.11.2025 (marked and annexed as Exhibit-A) under
Section 110 of the Customs Act, 1962 issued by respondent no. 2 – the
Directorate of Revenue Intelligence, Nhava Sheva-I, Mumbai Zonal Unit in
F.No. DRI/MZU/NS-I/INT-178/ENQ-68/2025.”
8. Dr. Kantawala, learned counsel for the petitioner has made extensive
submissions. He submits that the imports in question, which are for re-export was
bona fide, hence any alleged licensing discrepancy was purely regulatory and
would not warrant seizure and confiscation of the goods. It is his submission that
the action on the part of the respondents in not permitting re-export of goods is
wholly arbitrary, being in the teeth of the provisions of Sections 46, 47, 49, 69 &
111 of the Customs Act. It is also his submission that Section 80 of the Customs
Act clearly allows and permits re-export of goods brought into India.
9. Dr. Kantawala submits that in the present case, it was imperative for the
respondents to permit re-export of the goods, as the goods were not meant to be
cleared for home consumption, in the absence of any license with the petitioner,
issued under the Drugs and Cosmetic Act as also considering the shelf life of the
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goods, deterioration being imminent. It is submitted that this would result in an
irreparable loss to the petitioner. It is also his contention that the petitioner was
ready and willing to re-export the goods entirely at its own cost without claiming
any benefit.
10. Dr. Kantawala referring to Section 69 of the Customs Act would submit
that once the clearance of the goods for home consumption is not sought, the said
provision read with warehousing scheme contemplates re-export as a legitimate
disposition option. It is submitted that the detention of the goods despite
willingness of the petitioner to re-export at the petitioner’s cost, causes no
prejudice to the Revenue and is wholly arbitrary, illegal and contrary to the
provisions of the Customs Act. Dr. Kantawala submits that there was no warrant
to seize the goods considering the reasons as recorded in the seizure memo, which
inter alia record that the goods “might be mis-declared” based on the purported
intelligence, as also that the goods were undervalued and that there was a
requirement for the goods to be imported only on a valid license from CDSCO
stated to be mandatory for import of these goods. Dr. Kantawala would next
submit that the entire approach of respondent no. 2 is arbitrary inasmuch as on a
totally untenable premise, the Chartered Engineer was called upon by respondent
no.2 to submit a valuation report, to conclude that the goods were undervalued.
He further submits that it is surprising that the seizure memo also records that the
goods were attempted to be smuggled into India merely because there was no
license from the CDSCO and more particularly when the same were not to be
cleared for home consumption under any Bills of Entry for home consumption, as
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the goods were intended to be re-exported. It is also his contention that on a
totally untenable premise and on the basis of such valuation as undertaken by the
Chartered Engineer, the goods subject matter of three Bills of Entry are being
valued at Rs.2,04,95,700/-, Rs.3,78,59,012/- and Rs.4,26,39,507/- respectively
totalling to Rs.10,09,94,219/-, being seized under a reasonable belief that they
were liable to confiscation under the provisions of Section 111(d), 111(l) and
111(m) of the Customs Act, when the actual valuation of the goods was much
lesser as set out in the Bills of Entry presented for warehousing.
11. Insofar as the valuation by the Chartered Engineer is concerned, Dr.
Kantawala has submitted that the Chartered Engineer is not a competent expert to
value the nature of the goods which are cosmetics and FMCG and more
particularly Notice No. 16/2024 dated 23 February, 2024 whereby the Office of
the Commissioner of Customs had invited applications for empanelment of
Chartered Engineers for examination/valuation of second/old & used
machinery/goods etc. in the jurisdiction of Jawaharlal Nehru Custom House. It is
his contention that a Chartered Engineer would not have any expertise to
undertake a valuation of the goods in question which are cosmetics & FMCG.
12. In supporting the aforesaid submissions, Dr. Kantawala has placed reliance
on the decision of the Division Bench of this Court in Phoenix Overseas P. Ltd. vs
Union of India1 and the decision of Supreme Court in Garden Silk Mills Ltd. vs.
Union of India2.
1 2003(162) E.L.T. 25(Bom.)
2 1999 (113) E.L.T. 358 (SC)
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Respondent’s case
13. On the other hand, on behalf of respondents, reply affidavit of Mr. Sameer
Patil, Deputy Director of the Directorate of Revenue Intelligence, Nhava Sheva-I,
Mumbai Zonal Unit dated 26 February, 2026 is placed on record to oppose the
petition. The affidavit has wholly supported the impugned seizure memo. It is
stated that the Directorate of Revenue Intelligence (DRI) is functioning under the
Ministry of Finance, Department of Revenue and is inter alia concerned with
preventing smuggling of various contraband. It is contended that the officers of
DRI are Customs Officers who are working under the ambit of the Customs Act,
which is a special and complete code, having the object of detection and
prevention of the smuggling of goods are tasked with safeguarding and recovery
of customs duties and the government revenue.
14. Insofar as the petitioner is concerned, it is stated that the petitioner has
obtained an Import Export Code (IEC) No. AALCF8518K on 18 March, 2025
from the Directorate General of Foreign Trade (DGFT). It is next stated that the
DRI, Mumbai Zonal Unit is investigating cases pertaining to import of mis-
declared and restricted/prohibited goods including misuse of warehousing
provisions under Section 59 of the Customs Act. It is stated that investigations
revealed that the petitioner had knowingly and deliberately filed warehouse Bills
of Entry after having knowledge that the goods belonging to the same supplier
shipped through the same shipper, imported into India by another IEC
holder/Importer were kept on hold by the DRI, being similar goods which were
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seized and are under investigation. It is stated that in the present case,
warehousing Bills of Entry were filed as an afterthought to circumvent the
mandatory regulatory compliances on the permissible imports as envisaged under
the Customs Act and Foreign Trade Policy, 2023. It is contended that the actions
of the petitioner were clearly to circumvent the mandatory compliances as
required under the Drugs and Cosmetics Act, 1940 and Cosmetics Rules 2020
whereunder, no import of cosmetics was allowed without prior CDSCO licence.
In such context, reference is made to the provisions of Section 2 of the Customs
Act and more particularly to the definition of “assessment” [Section 2(2)],
“import” [Section 2(23)]; “importer” [Section 2(26)]; “imported goods” [Section
2(25)], and the definition of “India” [Section 2(27)]. Also reliance is placed on
the provisions of Section 46(1), 46(4A)(c) of the Customs Act and the provisions
of the Foreign Trade Policy, 2023 to contend that there is no distinction between
home consumption Bills of Entry and Warehouse Bills of Entry filed under
Section 46 of the Customs Act. It is contended that the warehouse Bills of Entry
are required to be self assessed by the importer under Section 17 of the Customs
Act, and are akin to the Bills of Entry for home consumption. It is next
contended that considering the fact that the petitioner did not possess the
CDSCO licence, the goods were prohibited goods as per Section 2(33) of the
Customs Act. The relevant extracts of the reply affidavit are required to be noted,
which reads thus:
“11. Further, attention is invited to Para 2.36 of the Foreign Trade Policy,
2023 which reads as under:-
Private/Public Bonded Warehouses for Imports:-
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(a) Private/Public bonded warehouses may be set up in DTA as per rules,
regulations and notifications issued under the Customs Act, 1962. Any person
may import goods except prohibited items, arms and ammunition, hazardous
waste and chemicals and warehouse them in such bonded warehouses.
Thus, it stipulates that warehousing of imported goods is subject to
compliance with the provisions of the Customs Act, 1962 read with Foreign
Trade Policy and other applicable laws, and specifically excludes prohibited
goods from being warehoused.
12. From the above, it appears that, there is no distinction between Bill of
Entry for Home consumption and Warehouse Bill of Entry filed under
Section 46 of the Customs Act, 1962. Warehouse, Bills of Entry must be self-
assessed by the importer under Section 17 read with section 2(2) of the
Customs Act 1962, just like the Bill of Entry for Home consumption. The
IEC holder/Importer have to declare and self-assess everything correctly
including requirements of various mandatory regulations, value and other
aspects. Filing of a Warehouse Bill of Entry does not absolve the importer
from compliance with applicable legal and regulatory requirements at the time
of importation as specifically mentioned in section 46 (4A) (c) of the Customs
Act, 1962. The purpose of The warehousing provisions is limited to deferral of
duty payment subject to furnishing of bond under section 59 and does not
permit import of prohibited or restricted goods in violation of applicable laws
and regulatory requirements, as well as undervalued them.
………
16. Further, Para 2.36 of the Foreign Trade Policy, 2023 reads as under:-
Private/Public Bonded Warehouses for Imports:-
(a) Private/Public bonded warehouses may be set up in DTA as per
rules, regulations and notifications issued under the Customs Act,
1962. Any person may import goods except prohibited items, arms and
ammunition, hazardous waste and chemicals and warehouse them in
such bonded warehouses.
(b) Such goods may be cleared for home consumption in accordance
with provisions of FTP and against Authorisation, wherever required.
Customs duty as applicable shall be paid at the time of clearance of
such goods.
(c) The clearance of the warehoused goods shall be as per the
provisions of the Customs Act, 1962.
It is submitted that, the Foreign Trade Policy categorically denies
warehousing of prohibited items. In the instant case, the goods
imported by the petitioner are prohibited/restricted goods as they have
not been imported in tandem with the provisions of the Foreign Trade
Policy, 2023 and thus, violated the same. Further, the goods in the
three (03) consignments were mis-declared in terms of value and non-
compliance of regulatory requirements of CDSCO registrations. Thus,
from the above discussions, it is ample clear that Bill of Entry filed
either for Home consumption or for Warehouse purpose, regulatory
compliances are mandatory. In the instant case, non-availability of
CDSCO licenses for imported goods make them prohibited.
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Furthermore, there is also mis-declaration in term of value.
17. It is submitted that, the petitioner had knowingly and deliberately filed
the warehouse Bills of Entry after coming to have the knowledge and
information that, the goods belonging to the same supplier imported into
India by an another IEC holder/Importer was kept on hold by the DRI, which
also contained similar goods which were subsequently seized and are under
investigation. Thus, the act of the petitioner in the instant case was nothing
but a very calculative, scheming and after-thought action, in order to
circumvent the mandatory compliances as required under the Cosmetic Rules,
2020 and deviate the investigation.
18. The import of cosmetics into India is strictly restricted inasmuch as, for
import of cosmetic products from foreign countries into India, registration
certificate from the Central Drugs Standard Control Organization [CDSCO] is
mandatory under the Cosmetic Rules, 2020. Thus, without the said
registration certificate, the import is in violation and is accordingly prohibited.
19. The petitioner is required to be examined and investigated under the
provisions of the Customs Act, 1962 in the present case, on the allegations of
having been involved in the illegal import of various brands of cosmetics,
perfumes etc. by way of mis-declaration and non-compliances of statutory
provisions. They are being investigated for the goods which had been
recovered under panchanama dated 12.11.2025, 13/14.11.2025 and
26.11.2025, for their 14/15.11.2025 and seized on role/involvement in the
import of the impugned goods.
20. Several opportunities were granted to the petitioner to join the
investigation and to participate in the investigation. Summons was also issued
to the other director of the petitioner company to make him attend in person
and co-operate in the investigation on several occasions. However, instead of
joining the investigation, the directors of the petitioner company deliberately
avoided the summons on some or other pretext. Initially, they informed that
they had given all the documents through email but deliberately and
intentionally avoided personal appearance. Till date, neither the directors nor
any of the representatives of the petitioner have joined the investigation.
21. The petitioner has sought permission for re-export of the impugned
goods.
….
The subject goods are liable for confiscation for mis-declaration of value and
non-compliance of regulatory requirements. They cannot be allowed to be re-
exported without investigation, issuance of Show Cause Notice and
adjudication thereof. These offences cannot be regularized by simply allowing
them to re-export when blatant violation of Customs Act, Foreign Trade
Policy, Drugs and Cosmetics Rules have already been brought on record. The
subject goods falls under the prohibited category and is still under
investigation. Further, the petitioner has deliberately avoided to join the
investigation inspite of giving numerous opportunities. Furthermore, there
have been import clearances effected of similar goods done deliberately from
another port, the fact which was hidden from the DRI and not disclosed till
date. Hence, it is humbly submitted that the plea of the petitioner should not
be entertained and they should be directed to join the investigation forthwith.”
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(emphasis supplied)
15. Having noted the relevant contents in the reply affidavit filed on behalf of
the respondents, a comparison of the value of goods as per the report submitted
by the government approved valuer vis-a-vis the valuation declared by the
petitioner [IEC holder/Importer] is as under:
Sr. Container No. Date of Value declared in Valuation given by the
No. Examination BE(Rs.) CE (Rs.)
1 FSCU9875276 12.11.2025 59,21,082 2,04,95,700
2 TCNU7647041 13/14.11.25 49,03,208 3,78,59,012
3 MEDU8880688 14/15.11.25 56,30,061 4,26,39,507
Total 1,64,54,351 10,09,94,219
16. The reply affidavit accordingly contends that the goods in question are
grossly undervalued. The petitioner has declared the value only Rs.1,64,54,351/-
as against the actual value of Rs.10,09,94,219/- .
17. Insofar as import of cosmetics into India being restricted, the following
contentions are raised in the reply affidavit in paragraph 23 :
“23. BRIEF FACTS OF THE CASE:
….. ….
…..
C) The import of cosmetics into India is restricted under Import Policy
inasmuch as, for import of cosmetic products from foreign countries into India,
registration certificate from the Central Drugs Standard Control Organization
(CDSCO) is mandatory under the Cosmetics Rules, 2020 and without said
registration certificate, the import is considered to be in violation of Foreign
Trade Policy and is accordingly, prohibited, as per Section 2(33) of the Customs
Act, 1962.
D) However, when enquired from the importer, he stated that he had
applied for the required license and due to that reason, he had not filed the Bills
of Entry for Home Consumption but instead filed a Warehouse Bills of Entry.
However, he wasn’t able to produce any documents evidencing that they had
applied for the CDSCO license. Though, he was contacted telephonically to
produce the copy of the pending CDSCO licenses, he had informed that, he
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was out of town for attending a marriage ceremony and requested for time. As
the goods were grossly undervalued and imported without a valid license from
the CDSCO, the same were seized under Section 110 of the Customs Act, 1962,
as it was liable for confiscation under Section 111 of the Customs Act, 1962.
E) It is submitted that, the import of branded/unbranded cosmetic
products into India, is regulated and requires to be registered with the Central
Drugs Standard Control Organization (CDSCO) which is governed by the
Directorate General of Health Services, Ministry of Health & Family Welfare,
Government of India. As per Gazette Notification G.S.R 426(E) dated 19 May,
2010 (RUD No.7) for amending the Drugs & Cosmetics Rules, 1945 prescribes
for registration of import of cosmetics into the country. All cosmetic products
that are imported for sale in India need to be registered with the licensing
authority as defined under Rule 21 of the Drugs & Cosmetics Rules, 1945. It is
restricted under Import Policy inasmuch as, it is mandatory to obtain
registration certificate from the Central Drugs Standard Control Organization
(CDSCO) under the Cosmetic Rules, 2020. Thus, without the said registration
certificate, the import is violative of the provisions of Customs Act, 1962 and
Foreign Trade Policy and is accordingly prohibited.
(emphasis supplied)
18. It is next contended by the respondents that the investigation revealed
quite peculiar facts and more particularly from the statements of Mr. Amit
Dhanuka as recorded under Section 108 of the Customs Act on 2 December,
2025, wherein, he stated that he had gone to Dubai, [U.A.E.] and had got a job in
a shop belonging to Sterling Perfumes Industries LLC at Deira, Dubai, U.A.E. He
stated that he was looking after the sales in the said shop till the year 2019. He
stated that he came back to Kolkata and started a business of selling of mobile
accessories at Kolkata. He stated that he started Glamstone Cosmetics Pvt. Ltd.
[petitioner] with one Mohammed Hufeza Sheikh, the other Director. The
following relevant contents on the statements as made by Mr. Amit Dhanuka as
stated in the reply affidavit read thus :
“23 G.(i) Shri Amit Dhanuka, one of the director and the petitioner, who was
present during the course of examination in his statement recorded under
Section 108 of the Customs Act, 1962 on 02.12.2025, stated inter alia, that:-
…..
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b) His role in Glamstone Cosmetics Pvt. Ltd. was to look after the sale
and purchase of goods viz. marketing; Glamstone Cosmetics Pvt. Ltd. is
indulged in trading of cosmetic goods viz. perfume, body cream, lotion, face
wash etc.; cosmetics are imported from Dubai, UAE and were to be sold in the
local market;
c) Sh. Mohammed Hufeza Sheikh, the other director also looks after sale
and purchase of goods, but since the import in Glamstone Cosmetics Pvt. Ltd.
was done for the first time, he was only looking after the entire business; he
came in contact with Sh. Mohammed Hufeza Sheikh, who used to come to
Sterling Perfumes, Dubai for purchasing cosmetics;
d) The orders for import of goods are placed through phone calls and
emails, they don’t have any purchase orders and IEC of Glamstone Cosmetics
Pvt. Ltd. was obtained in the year March, 2025;
…..
…..
…..
h) He agreed that, he was present at the APM Terminals and Punjab
Conware CFS wherein cosmetic goods were found and recovered; CDSCO
Registration Certificates in respect of certain imports were available and for
the remaining goods, he had applied for the CDSO Registration Certificates,
he submitted list mentioning the description of goods for which CDSCO
registration certificate had been applied filed online;
i) On being asked, when he didn’t have the CDSCO Registration
Certificates, why did he import the cosmetic goods, he stated that he had
applied for the CDSCO Registration Certificates on 05th May, 2025 and had
anticipated that he will be issued the CDSCO Registration Certificates by the
time his import consignment reaches India; on 12th November, 2025, he
received an email informing that a query has been raised against his
Application No. COS/COS-4/2025/508;
j) The bank account of Glamstone Cosmetics Private Limited is held
with IndusInd Bank, and no payments made towards the goods imported by
Glamstone Cosmetics Pvt. Ltd., as being an ex-employee, on the goodwill,
goods given to him with the condition that, after sale of the goods, the monies
to be transferred to the supplier.
(emphasis supplied)
19. There is also a statement recorded of Shri. Roshan Dalvi, Executive
(Documentation), Cesta Shipping Pvt. Ltd. as also a statement of Shri. Nasir
Hussain, Trade Manager, Aahil Shipping and Logistics Pvt. Ltd.-Navigo India
Maritime Pvt. Ltd. (shipping line) who have stated that the Import General
Manifest (IGM) was filed by them through their port handling agent namely
United Brothers Shipping Pvt. Ltd. A statement of Shri. Suhas Kashinath Palkar,
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Senior Executive of United Brother Shipping Services Pvt. Ltd. was also recorded.
20. On the basis of such statements, it is contended in the reply affidavit that
Shri. Amit Dhanuka, Director of the petitioner revealed that he was earlier
working in a shop at Dubai belonging to the supplier of the goods till the year
2019 and the other Director was visiting the suppliers’ shop for purchase of
cosmetics. It was revealed that they did not have any purchase orders and this was
their first import consignment. He has also stated that CDSCO registration
certificates for certain products were available with them and for the rest, they had
applied, however, on 12 November 2025 he received an e-mail informing that a
query has been raised against his application. Surprisingly, he further stated that
he had not made any payment to the supplier in relation to the imports, being an
ex-employee, (he had left the job in the year 2019) as on goodwill the goods had
been given to him on credit. Also as the CDSCO registration certificate for the
goods subject matter of three containers was not received by him, hence, he had
filed warehouse bills of entry. He stated that the goods would be cleared for home
consumption only after receipt of the CDSCO registration certificate.
21. It is thus stated that from the statements of the shipping line, consignee
and the person who had filed the IGM, it was clear that at no point of time it was
informed that the consignments were meant to be re-exported. It was hence clear
that movement of the consignments to a warehouse, by filing of warehouse bills of
entry, was an after-thought, and a process specifically adopted to circumvent the
non-compliance of CDSCO registration. Hence after such illegal import an
attempt to re-export the consignments gradually was being restarted when the
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petitioner knew that their consignments would also be kept on hold for
examination and for violation of the Customs Act similar to the consignment of
the same supplier which are withheld for non compliances.
22. It is, hence, contended that the petitioner is involved in the illegal import
and smuggling of cosmetics, perfumes and other toiletry goods into India, by way
of mis-declaration of value and other particulars, in order to circumvent
restriction imposed in terms of the import of cosmetics into India under the
import policy. As the petitioner was clearly aware that for import of cosmetics
products into India under the import policy, licence from CDSCO was mandatory
under the Drugs and Cosmetics Act read with Cosmetics Rules, 2020, before
importing of such goods into India. Hence, without the said license, the import
was in violation of the said Rules read with the foreign trade policy and therefore,
prohibited.
23. Insofar as the petitioner’s contention on the re-export is concerned, it is
contended that the act of the petitioners in the instant case was nothing but
calculative, scheming and an after-thought in order to circumvent the mandatory
compliances as required under the Drugs and Cosmetics Act and the Cosmetics
Rules, 2020, intended to scuttle the investigation. The relevant averments in that
regard are required to be noted which read thus:
“29. Petitioner has contended that, the intent was to re-export the goods hence,
the seizure is totally illegal and unwarranted. The petitioner had imported the three
(03) consignments viz. declaring them as ‘assorted Toiletries’ for which they have
filed warehouse Bills of Entry. In the instant case, the petitioner had knowingly and
deliberately filed the warehouse Bills of Entry after coming to have the knowledge
and information that, the goods belonging to the same supplier shipped throughPage 15 of 40
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WP957_2026.DOCthe same shipper, imported into India by an another IEC holder/Importer was kept
on hold by the DRI, which also contained similar goods. The same was
subsequently seized as they are liable for confiscation for violation of Customs Act,
1962, Drugs and Cosmetics Rules and Foreign Trade Policy and is under
investigation. Thus, the act of the petitioner in the instant case was nothing but a
very calculative, scheming and after-thought action, in order to circumvent the
mandatory compliances as required under the Cosmetic Rules, 2020 and scuttle
the investigation. Further, the petitioner didn’t submit any proof of placing any
purchase orders nor any anticipated sales order and initially had no intent for re-
export. The petitioner deliberately and intentionally avoided to participate in the
investigation nor have they at any point of time, appeared before the DRI, for
presenting the facts of their case, except at the initial stage. This very much shows
the deliberate avoidance attitude of the petitioner of not presenting himself before
the DRI officers for investigation.
30. Further, the petitioner has failed to disclose the actual reason behind for
clearing these consignments for re-export, when they had imported the goods into
India for domestic clearance. The contention of the petitioner that these goods
were never meant for Home consumption is incorrect and false. As mentioned
above, since another consignment of the same supplier imported into India using
the same shipper and adopting similar modus operandi was seized under Customs
Act, 1962, the petitioner had deliberately and intentionally filed the warehouse
Bills of Entry to avoid their consignments from being seized for undervaluation
and non-compliance of the mandatory provisions violative of Customs Act, 1962
in particular Section 46 (4A) (c) of the Customs Act, 1962. Further, there is not
only non-compliance of regulatory provisions of CDSCO but also mis-declaration
in terms of value of the goods in all the three (03) consignments.
31. Further, several opportunities were granted to the petitioner to present his case
and participate & co-operate with the investigation. However, instead of appearing
other than his initial appearance of recording preliminary statement, deliberately
and intentionally went to his residence located at West Bengal and never
participated/presented himself before the DRI. Furthermore, nor the petitioner or
his another director who is in Mumbai and/or any other representative of the
petitioner company have presented themselves for investigation. Thus, the
petitioner’s submission that the re-export were bonafide and doesn’t warrant
confiscation doesn’t hold.
32. Petitioner has falsely alleged that the valuation report is based on assumptions
and presumptions by providing an indicative assessment. The allegations are totally
denied. It is submitted that, as far as the valuation of the goods are concerned, the
same were obtained from a registered Chartered Engineer/Government Valuer.
The Chartered Engineer/Government Valuer on physical inspection and visual
verification had given the valuation of the impugned goods stuffed in the
containers to the tune of Rs. 10.10 crore [Rupees Ten Crore and Ten Lakh Only].
Accordingly, the said impugned goods were seized under the provisions of Section
110 of the Customs Act, 1962 under the reasonable belief that they are liable for
confiscation under Section 111 of the Customs Act, 1962. Thus, the allegation on
the part of the petitioner that, seizure is founded primarily on alleged
undervaluation is incorrect and false as there are other reasons also which is a
matter of investigation. However, the petitioner is deliberately not co-operating in
the investigation.”
(emphasis supplied)
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24. Mr. Mishra, learned Counsel for the Respondents, referring to the
aforesaid case of the respondents in the reply affidavit, has accordingly submitted
that the petition would not warrant interference and the same is required to be
dismissed.
Analysis and conclusion :
25. We have heard learned Counsel for the parties and with their assistance, we
have perused the record.
26. As seen from the aforesaid discussion, we are tasked to decide whether, in
the facts and circumstances of the case, having regard to the relevant provisions of
the Customs Act, 1962, read with the provisions of the Drugs and Cosmetics
Act,1940 and the Cosmetics Rules, 2020, the petitioner’s case for re-export of the
goods can be accepted, in the light of the case of the Department that the goods
are ‘prohibited goods’ within the meaning of Section 2(33) of the Customs Act,
hence, the impugned seizure deserves to be upheld.
27. In the context of the issue as involved, it is imperative to note the relevant
provisions of the Customs Act, which read thus:
“2. Definitions.–In this Act, unless the context otherwise requires,–
… .. … …. ..
(2) “assessment” means determination of the dutiability of any goods and the
amount of duty, tax, cess or any other sum so payable, if any, under this Act or
under the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the
Customs Tariff Act) or under any other law for the time being in force, with
reference to–
(a) the tariff classification of such goods as determined in accordance with the
provisions of the Customs Tariff Act;
(b) the value of such goods as determined in accordance with the provisions of
this Act and the Customs Tariff Act;
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(c) exemption or concession of duty, tax, cess or any other sum, consequent
upon any notification issued therefor under this Act or under the Customs Tariff
Act or under any other law for the time being in force;
(d) the quantity, weight, volume, measurement or other specifics where such
duty, tax, cess or any other sum is leviable on the basis of the quantity, weight,
volume, measurement or other specifics of such goods;
…. … …
(23) “import”, with its grammatical variations and cognate expressions, means
bringing into India from a place outside India;
………
(25) “imported goods” means any goods brought into India from a place outside
India but does not include goods which have been cleared for home consumption;
(26) “importer” in relation to any goods at any time between their importation and
the time when they are cleared for home consumption, includes any owner,
beneficial owner] or any person holding himself out to be the importer;
(27) “India” includes the territorial waters of India;
(28) “Indian Customs Waters” means the waters extending into the sea up to the
limit of Exclusive Economic zone under Section 7 of the Territorial Waters,
Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976
(80 of 1976), and includes any bay, gulf, harbour, creek or tidal river;
…. … … …
(33) “prohibited goods” means any goods the import or export of which is subject
to any prohibition under this Act or any other law for the time being in force but
does not include any such goods in respect of which the conditions subject to
which the goods are permitted to be imported or exported have been complied
with;”
28. The substantive provisions as referred and relied on behalf of the parties
are the provisions of Section 11 of the Customs Act which provide for ‘Power to
prohibit importation or exportation of goods.’ Chapter IVA dealing with the
provisions for ‘Detection of Illegally Imported Goods And Prevention of the
Disposal thereof’, under which Section 11A(a) providing for “illegal import” to
inter alia mean the import of any goods in contravention of the provisions of the
Act or any other law for the time being in force. Section 111 provides for
‘Confiscation of improperly imported goods, etc.’ These provisions along with
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other relevant provisions for convenience are required to be noted which read
thus:
Section 11. Power to prohibit importation or exportation of goods.
(1) If the Central Government is satisfied that it is necessary so to do for any of
the purposes specified in sub-section (2), it may, by notification in the Official
Gazette, prohibit either absolutely or subject to such conditions (to be fulfilled
before or after clearance) as may be specified in the notification, the import or
export of goods of any specified description.
……….
11A. Definitions.–In this Chapter, unless the context otherwise requires,–
(a) “illegal import” means the import of any goods in contravention of the
provisions of this Act or any other law for the time being in force;
(b) “intimated place” means a place intimated under sub-section (1), sub-
section (2) or sub-section (3), as the case may be, of section 11C;
(c) “notified date”, in relation to goods of any description, means the date on
which the notification in relation to such goods is issued under section 11B;
(d) “notified goods” means goods specified in the notification issued under
section 11B.]
………………
46. Entry of goods on importation.–(1) The importer of any goods, other than
goods intended for transit or transhipment, shall make entry thereof by
presenting electronically on the customs automated system to the proper officer
a bill of entry for home consumption or warehousing in such form and manner
as may be prescribed:
Provided that the Principal Commissioner of Customs or Commissioner
of Customs may, in cases cases where it is not feasible to make entry by
presenting electronically on the customs automated system, allow an entry to be
presented in any other manner:
Provided further that] if the importer makes and subscribes to a
declaration before the proper officer, to the effect that he is unable for want of
full information to furnish all the particulars of the goods required under this
sub-section, the proper officer may, pending the production of such
information, permit him, previous to the entry thereof (a) to examine the goods
in the presence of an officer of customs, or (b) to deposit the goods in a public
warehouse appointed under section 57 without warehousing the same.
(2) Save as otherwise permitted by the proper officer, a bill of entry shall
include all the goods mentioned in the bill of lading or other receipt given by
the carrier to the consignor.
(3) The importer shall present the bill of entry under sub-section (1) before the
end of the next day following the day (excluding holidays) on which the aircraft
or vessel or vehicle carrying the goods arrives at a customs station at which such
goods are to be cleared for home consumption or warehousing:
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WP957_2026.DOCProvided that a bill of entry may be presented at any time not exceeding
thirty days prior to the expected arrival of the aircraft or vessel or vehicle by
which the goods have been shipped for importation into India:
Provided further that where the bill of entry is not presented within the
time so specified and the proper officer is satisfied that there was no sufficient
cause for such delay, the importer shall pay such charges for late presentation of
the bill of entry as may be prescribed.
(4) The importer while presenting a bill of entry shall make and subscribe to a
declaration as to the truth of the contents of such bill of entry and shall, in
support of such declaration, produce to the proper officer the invoice, if any,
and such other documents relating to the imported goods as may be prescribed.
(4A) The importer who presents a bill of entry shall ensure the following,
namely-
(a) the accuracy and completeness of the information given therein;
(b) the authenticity and validity of any document supporting it; and
(c) compliance with the restriction or prohibition, if any, relating to the goods
under this Act or under any other law for the time being in force.
(5) If the proper officer is satisfied that the interests of revenue are not
prejudicially affected and that there was no fraudulent intention, he may permit
substitution of a bill of entry for home consumption for a bill of entry for
warehousing or vice versa.
47. Clearance of goods for home consumption.–
(1) Where the proper officer is satisfied that any goods entered for home
consumption are not prohibited goods and the importer has paid the import
duty, if any, assessed thereon and any charges payable under this Act in respect
of the same, the proper officer may make an order permitting clearance of the
goods for home consumption:
Provided that such order may also be made electronically through the
customs automated system system on the basis or risk evaluation through
appropriate selection criteria:
Provided further that] the Central Government may, by notification in
the Official Gazette, permit certain class of importers to make deferred payment
of said duty or any charges in such manner as may be provided by rules.
(2) The importer shall pay the import duty–
(a) on the date of presentation of the bill of entry in the case of self assessment;
or
(b) within one day (excluding holidays) from the date on which the bill of entry
is returned to him by the proper officer for payment of duty in the case of
assessment, reassessment or provisional assessment; or
(c) in the case of deferred payment under the proviso to sub-section (1), from
such due date as may be specified by rules made in this behalf, and if he fails to
pay the duty within the time so specified, he shall pay interest on the duty not
paid or short-paid till the date of its payment, at such rate, not less than ten per
cent. but not exceeding thirty-six per cent. per annum, as may be fixed by the
Central Government, by notification in the Official Gazette.
Provided that the Central Government may, by notification in the
Official Gazette, specify the class or classes of importers who shall pay such duty
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electronically:
Provided further that] where the bill of entry is returned for payment of
duty before the commencement of the Customs (Amendment) Act, 1991 (55 of
1991) and the importer has not paid such duty before such commencement, the
date of return of such bill of entry to him shall be deemed to be the date of such
commencement for the purpose of this section:
Provided also that] if the Board is satisfied that it is necessary in the
public interest so to do, it may, by order for reasons to be recorded, waive the
whole or part of any interest payable under this section.
……….
49. Storage of imported goods in warehouse pending clearance or removal.–
Where,–
(a) in the case of any imported goods, whether dutiable or not, entered for
home consumption, the Assistant Commissioner of Customs or Deputy
Commissioner of Customs is satisfied on the application of the importer that
the goods cannot be cleared within a reasonable time;
(b) in the case of any imported dutiable goods, entered for warehousing, the
Assistant Commissioner of Customs or Deputy Commissioner of Customs is
satisfied on the application of the importer that the goods cannot be removed
for deposit in a warehouse within a reasonable time, the goods may pending
clearance or removal, as the case may be, be permitted to be stored in a public
warehouse for a period not exceeding thirty days:
Provided that the provisions of Chapter IX shall not apply to goods
permitted to be stored in a public warehouse under this section:
Provided further that the Principal Commissioner of Customs or
Commissioner of Customs may extend the period of storage for a further period
not exceeding thirty days at a time.
…………
Section 59. Warehousing bond. The importer of any goods in respect of which
a bill of entry for warehousing has been presented under section 46 and assessed
to duty under section 17 or section 18 shall execute a bond in a sum equal to
thrice the amount of the duty assessed on such goods, binding himself–
(a) to comply with all the provisions of the Act and the rules and regulations
made thereunder in respect of such goods;
(b) to pay, on or before the date specified in the notice of demand, all duties and
interest payable under sub-section (2) of section 61; and
(c) to pay all penalties and fines incurred for the contravention of the provisions
of this Act or the rules or regulations, in respect of such goods.
(2) For the purposes of sub-section (1), the Assistant Commissioner of Customs
or Deputy Commissioner of Customs may permit an importer to execute a
general bond in such amount as the Assistant Commissioner of Customs or
Deputy Commissioner of Customs may approve in respect of the warehousing
of goods to be imported by him within a specified period.
(3) The importer shall, in addition to the execution of a bond under sub-section
(1) or sub-section (2), furnish such security as may be prescribed.
(4) Any bond executed under this section by an importer in respect of any
goods shall continue to be in force notwithstanding the transfer of the goods toPage 21 of 40
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(5) Where the whole of the goods or any part thereof are transferred to another
person, the transferee shall execute a bond in the manner specified in sub-
section (1) or sub-section (2) and furnish security as specified under sub-section
(3).
69. Clearance of warehoused goods for export.–(1) Any warehoused goods
may be exported to a place outside India without payment of import duty if–
(a) a shipping bill or a bill of export or the form as prescribed under section 84
has been presented in respect of such goods;
(b) the export duty, fine and penalties payable in respect of such goods have
been paid; and]
(c) an order for clearance of such goods for 9[export] has been made by the
proper officer.
Provided that the order referred to in clause (c) may also be made
electronically through the customs automated system on the basis or risk
evaluation through appropriate selection criteria.
(2) Notwithstanding anything contained in sub-section (1), if the Central
Government is of opinion that warehoused goods of any specified description
are likely to be smuggled back into India, it may, by notification in the Official
Gazette, direct that such goods shall not be exported to any place outside India
without payment of duty or may be allowed to be so exported subject to such
restrictions and conditions as may be specified in the notification.
…..
Section 111. Confiscation of improperly imported goods, etc.
The following goods brought from a place outside India shall be liable to
confiscation:–
…. … …. …
d) any goods which are imported or attempted to be imported or are brought
within the Indian customs waters for the purpose of being imported, contrary to
any prohibition imposed by or under this Act or any other law for the time
being in force;
… … … ..
(f) any dutiable or prohibited goods required to be mentioned under the
regulations in an 1[arrival manifest or import manifest] or import report which
are not so mentioned;
… … … ..
(l) any dutiable or prohibited goods which are not included or are in excess of
those included in the entry made under this Act, or in the case of baggage in the
declaration made under section 77;”
…………”
(emphasis supplied)
29. Having noted the provisions of the Customs Act, it is also necessary to
refer to the provisions of the Drugs and Cosmetics Act, 1940 which defines the
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expressions ‘cosmetic’ under Section 3(aaa) and ‘to import’ under Section 3(g) to
mean to bring into India. Chapter III of the Drugs and Cosmetics Act defines
‘Misbranded cosmetics’ under Section 9C; ‘Spurious cosmetics’ under Section
9D, and ‘Prohibition of import of certain drugs or cosmetics’ under Section 10;
further Section 10A provides for ‘Power of Central Government to prohibit
import of drugs and cosmetics in public interest’; Section 11 provides for
‘Application of law relating to sea customs and powers of Customs officers’. The
said provisions are required to be noted which read thus:
“3. Definitions. –In this Act, unless there is anything repugnant in the subject
or context, —
… .. … … ..
(aaa) “cosmetic” means any article intended to be rubbed, poured, sprinkled or
or sprayed on, or introduced into, or otherwise applied to, the human body or
any part thereof for cleansing, beautifying, promoting attractiveness, or
altering the appearance, and includes any article intended for use as a
component of cosmetic ;
.. … … …
(g) “to import”, with its grammatical variations and cognate expressions means
to bring into India;
9C. Misbranded cosmetics.–For the purposes of this Chapter, a cosmetic shall
be deemed to be misbranded–
(a) if it contains a colour which is not prescribed; or
(b) if it is not labelled in the prescribed manner; or
(c) if the label or container or anything accompanying the cosmetic bears
any statement which is false or misleading in any particular.
9D. Spurious cosmetics.–For the purposes of this Chapter, a cosmetic shall be
deemed to be spurious,–
(a) if it is imported under a name which belongs to another cosmetic; or
(b) if it is an imitation of, or is a substitute for, another cosmetic or resembles
another cosmetic in a manner likely to deceive or bears upon it or upon its
label or container the name of another cosmetic, unless it is plainly and
conspicuously marked so as to reveal its true character and its lack of identity
with such other cosmetic; or
(c) if the label ,or container bears the name of an individual or a company
purporting to be the manufacturer of the cosmetic which individual or
company is fictitious or does not exist; or
(d) if it purports to be product of a manufacture of whom it is not truly a
product.
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10. Prohibition of import of certain drugs or cosmetics.–From such date1 as
may be fixed by the Central Government by notification in the Official
Gazette in this behalf, no person shall import–
(a) any drug or cosmetic which is not of standard quality;
(b) any misbranded drug or misbranded or spurious cosmetics;
(bb) any adulterated or spurious; drug;
(c) any drug or cosmetic for the import of which a licence is prescribed,
otherwise than under, in accordance with, such licence;
(d) any patent or proprietary medicine, unless there is displayed in the
prescribed manner on the label or container thereof the true formula or list of
active ingredients contained in it together with the quantities thereof;
(e) any drug which by means of any statement, design or device accompanying
it or by any other means, purports or claims to cure or mitigate any such
disease or ailment, or to have any such other effect, as may be prescribed;
(ee) any cosmetic containing any ingredient which may render it unsafe or
harmful for use under the directions indicated or recommended;
(f) any drug or cosmetic the import of which is prohibited by rule made under
this Chapter :
Provided that nothing in this section shall apply to the import, subject
to prescribed conditions, of small quantities of any drug for the purpose of
examination, test or ana lysis or for personal use :
Provided further that the Central Government may, after consultation
with the Board, by notification in the Official Gazette, permit, subject to any
conditions specified in the notification, the import of any drug or class of
drugs not being of standard quality.
10A. Power of Central Government to prohibit import of drugs and cosmetics
in public interest.–Without prejudice to any other provision contained in this
Chapter, if the Central Government is satisfied that the use of any drug or
cosmetic is likely to involve any risk to human beings or animals or that any
drug does not have the therapeutic value claimed for it or contains ingredients
and in such quantity for which there is no therapeutic justification and that in
the public interest it is necessary or expedient so to do then, that Government
may, by notification in the Official Gazette, prohibit the import of such drug
or cosmetic.
11. Application of law relating to sea customs and powers of Customs officers.
(1) The law for the time being in force relating to sea customs and to goods,
the import of which is prohibited by Section 18 of the Sea Customs Act,
187810 (18 of 1878) shall, subject to the provisions of section 13 of this Act,
apply in respect of drugs and cosmetics the import of which is prohibited
under this Chapter and officers of Customs and officers empowered under that
Act to perform the duties imposed thereby on a Commissioner of Customs
and other officers of Customs, shall have the same powers in respect of such
drugs and cosmetics as they have for the time being in respect of such goods as
aforesaid.
(2) Without prejudice to the provisions of sub -section (1), the Commissioner
of Customs or any officer of the Government authorised by the Central
Government in this behalf, may detain any imported package which he
suspects to contain any drug or cosmetic the import of which is prohibited
under this Chapter and shall forthwith report such detention to the Drugs
Controller, India and, if necessary, forward the package or sample of any
suspected drug or cosmetic found therein to the Central Drugs Laboratory.”
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(emphasis supplied)
30. Under Cosmetics Rules 2020, Chapter III provides for ‘Import and
Registration.’ Rule 12 provides for ‘import of cosmetics.’ Rule 13 provides for
‘grant of import registration certificate.’ Rule 14 provides for ‘validity of import
registration certificate.’ Rule 17 provides for ‘Import of cosmetics already
registered for import’. Rule 18 provides for ‘Prohibition of import of certain
cosmetic’. Rule 19 provides for ‘Documents to be supplied to the Commissioner
of Customs’. Rule 20 provides for ‘Procedure for import of cosmetics.’ These
relevant Rules read thus:
“12. Import of cosmetics.–(1) No cosmetic shall be imported into India
unless the product has been registered in accordance with these rules by the
Central Licensing Authority or by any officer to whom such powers may be
delegated under sub-rule (1) of rule 5.
(2) An application for registration of a cosmetic product intended to be
imported into India shall be made through the online portal of the Central
Government in Form COS- 1 either by the manufacturer himself or by his
authorised agent or the importer in India or by the subsidiary in India
authorised by the manufacturer.
(3) An authorisation by the manufacturer to his agent in India shall be duly
authenticated either in India before a first class Magistrate or in the country of
origin before the authority competent under the laws of that country or by an
authority specified in the First Schedule.
(4) The applicant referred to sub-rule (2) above shall furnish along with the
application such other information and documents as specified in Part I of the
Second Schedule:
Provided also that in the event of application for import of bulk
finished formulation ready to fill, the following additional documents shall
also required to be furnished:
(i) a valid manufacturing license for the finished formulation of the
cosmetic ready to fill in finished form from the State Licensing
Authority; and
(ii) details of registered brand owner of the finished product in India;
(5) The application for registration in accordance with sub-rule (2) shall be
accompanied by a copy of the receipt of fee having been deposited as specified
in Third Schedule.
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(6) The fee shall be such for each category of cosmetic along with each
manufacturing site with additional fee for each category of cosmetic and
variant specified in the Fourth Schedule.
(7) Till such time, the online portal becomes operational for this purpose,
offline application in Form COS- 1 may be made either by the manufacturer
himself or by his authorised agent or by the importer in India or by the
subsidiary in India authorised by the manufacturer for registration of a
cosmetic referred to in sub-rule (1).
(8) The applicant shall be liable to pay testing fees directly to the testing
Laboratory approved by the Central Government referred in rule 11, for
examination, test and analysis of imported cosmetics in respect of cosmetics
identified for such examination as specified in the Fifth Schedule.
(9) The applicant shall pay the fee as specified in the Third Schedule in
connection with the expenditure to be incurred for inspecting or visiting the
manufacturing premises of cosmetics approved in the foreign countries by
officers authorised by Central Licensing Authority, as considered necessary.
13. Grant of import registration certificate.–(1) After examination of
documents furnished with the application under sub-rule (2) of rule 12 the
Central Licensing Authority may, on being satisfied, grant import registration
certificate in Form COS- 2 or may reject such application for which reasons
shall be recorded in writing within a period of six months from the date of
application.
(2) In the event of rejection, the applicant may appeal to the Central
Government within a period of forty-five days and that Government, may,
after such enquiry into the matter, as considered necessary, pass orders in
relation thereto within a period of ninety days from the date of appeal.
(3) In case of a new cosmetic, the applicant shall obtain prior permission in
Form COS- 3 as provided in Chapter V from the Central Licensing Authority
before registration of import of new cosmetic into India.
(4) A single application may be made and a single registration certificate in
Form COS- 2 may be issued in respect of import of one or more cosmetics
manufactured by the same manufacturer:
Provided that the cosmetics are manufactured at one factory or more
than one factory functioning conjointly as a single manufacturing unit for
cosmetic intended for registration.
(5) A fee as specified in the Third Schedule shall be paid for a duplicate copy
of the registration certificate, if the original is defaced, damaged or lost.
14. Validity of import registration certificate.–(1) A registration certificate
granted under rule 13 shall remain valid in perpetuity, subject to payment of
registration certificate retention fee as specified in the Third Schedule before
completion of the period of five years from the date of its issue, unless, it is
suspended or cancelled by the Licensing Authority.
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(2) If the licensee fails to pay the required registration certificate retention fee
on or before the due date as referred to in sub-rule (1), the registration
certificate holder shall, in addition to the registration certificate retention fee,
be liable to pay a late fee calculated at the rate of two per cent, of the
registration certificate retention fee for every month or part thereof within one
hundred and eighty days and in the event of non-payment of such fee during
that period, the registration certificate shall be deemed to have been cancelled.
……….
17. Import of cosmetics already registered for import.–(1) A cosmetic
manufactured in a foreign site and already registered under rule 13 for import
and sale in India, may be imported by any person or entity by making an
application in online portal of the Central Government in Form COS- 4 with
an undertaking as specified in Sixth Schedule.
(2) After examination of documents furnished with the application under sub-
rule (1), the Central Licensing Authority may, on being satisfied, subject to the
conditions, grant import registration number in Form COS- 4A, or may reject
such application for which reasons shall be recorded in writing within a period
of six months from the date of application.
(3) An import registration number granted under sub-rule (2) shall remain
valid for a period of three years from the date of its issue, unless it is suspended
or cancelled.
(4) If the importer fails to comply with any of the conditions of the Import
Registration Number issued in Form COS- 4A, the Central Licensing
Authority may, after giving him an opportunity to show cause as to why such
an order should not be passed, by an order in writing, stating the reasons
therefore, suspend or cancel the import registration number for such period as
it thinks, fit.
18. Prohibition of import of certain cosmetic.–(1) No cosmetic, the
manufacture, sale or distribution of which is prohibited in the country of
origin, shall be imported under the same name or under any other name
except for the purpose of examination, test or analysis.
(2) No cosmetics shall be imported unless the “Use Before or use by” date
shown on the label, wrapper or container of the cosmetic is later than six
months from the date of import.
(3) No cosmetic containing hexachlorophene shall be imported.
(4) No cosmetic that has been tested on animals after the 12th day of
November 2014 shall be imported into the country.
19. Documents to be supplied to the Commissioner of Customs.–Before any
cosmetics are imported, a declaration signed by manufacturer or on behalf of
the manufacturer or by importer or on behalf of the importer that the
cosmetics comply with the provisions of Chapter III of the Act, and the rules
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made thereunder, shall be supplied to the Commissioner of Customs.
20. Procedure for import of cosmetics.–(1) If the officer appointed at the port
of entry by the Central Government has reason to believe that any cosmetic
contravenes any of the provisions of the Act or the rules made thereunder, he
may take sample of the cosmetic from the consignment for inspection.
(2) If on examination of the sample drawn as per sub-rule (1) defects are
noticed, the officer shall advise the Commissioner of Customs about further
action to be taken.
(3) If the suspected contravention of the provisions of the Act or the rules is
such as may have to be determined by test, the officer shall send the sample to
the Laboratory established for the purpose for performing such tests and the
consignment of the said cosmetic shall be detained till such time, the test
report on that sample is received from the Director of the said Laboratory or
any other officer of the Laboratory empowered by him in this behalf:
Provided that if the importer gives an undertaking in writing not to
dispose of the cosmetic without the consent of the Commissioner of Customs
and to return the consignment or such portion thereof as may be required, the
Commissioner of Customs may, make over the consignment to the importer.
(4) If the importer who has given an undertaking under proviso to sub-rule (1)
is required by the Commissioner of Customs to return the consignment or
portion thereof, he shall return the consignment or portion thereof within ten
days of receipt of the notice.
(5) If the Director of the Laboratory established for the purpose by the Central
Government or any other officer of the laboratory empowered by him in this
behalf with the approval of the Central Government, reports to the
Commissioner of Customs or to the officer mentioned in sub-rule (1) that the
sample of any cosmetic in a consignment contravenes provisions of Chapter III
of the Act or rules made thereunder and that the contravention is such that it
cannot be remedied by the importer, the Commissioner of Customs shall
communicate the report forthwith to the importer who shall within two
months of receiving such communication either send back all the cosmetic of
that description in the consignment to the country in which it was
manufactured or to the country from which it was imported or hand it over to
the Central Government which shall cause it to be destroyed:
Provided that the importer may, within thirty days of receipt of the report,
make a representation against the report to the Commissioner of Customs who
shall forward the representation with a fresh sample of the cosmetic to the
Central Licensing Authority, who shall if necessary, after obtaining the report
of the Director of the Central Cosmetics Laboratory, pass orders thereon which
shall be final.
(6) If the Central Licensing Authority or any other officer empowered by the
said authority in this behalf with the approval of the Central Government,
reports to the Commissioner of Customs after inspection of the sample of the
cosmetic and where necessary, after obtaining a test report thereon, that thePage 28 of 40
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WP957_2026.DOCsample of the said cosmetic contravenes any provision of the Act or the rules
made thereunder and that contravention is such that it can be remedied by the
importer, the Commissioner of Customs shall communicate the report
forthwith to the importer and permit him to import the cosmetic on his giving
an undertaking in writing not to dispose of the cosmetic without the
permission of the officer authorised in this behalf by the Central Government.
31. Having noted the relevant statutory provisions, the present case needs to
be considered on the conspectus of a conjoint application of the provisions of the
Customs Act, the Drugs and Cosmetics Act, 1940 and the Cosmetics Rules 2020.
It is clearly seen from the aforesaid provisions as applicable to the imports in
question, that on such goods duty of customs would be leviable under the
Customs Act, if the same were intended to be cleared for home consumption,
hence would be dutiable goods within the meaning of Section 2(14) of the
Customs Act.
32. However, something which is at the very threshold needs to be discussed,
namely, when the goods are sought to be imported into India from a place outside
India, necessarily the provision of Section 2(23) defining ‘import’ which mean
“bringing into India from a place outside India”, would become applicable. Such
goods would be imported goods within the meaning of Section 2(25) being any
goods brought into India from a place outside India, prior to their clearance for
home consumption. Thus, in the context of bringing of the goods into India as
ordained by Section 2(23) and Section 2(25) (supra), Section 2(27) and Section
2(28) become relevant which means “the territorial waters of India” and the
“Indian customs water” to inter alia mean waters extending into the sea, up to the
limit of ‘exclusive economic zone…..’. Further Section 2(33) when speaks about
‘prohibited goods’ it means any goods, the import or export of which is “subject to
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any prohibition” under the Act “or any other law for the time being in force”. Also
Section 11A(a) defines “illegal import” to mean the import of any goods in
contravention of the provisions of the Act or “any other law for the time being in
force”. It is in the context of the said provisions, Chapter VII of the Customs Act
which inter alia provide for clearance of imported goods are required to be
considered in Section 46 provides for ‘Entry of goods on importation.’
33. On a cumulative application of the provisions of the Customs Act (supra)
read with the provisions of the Drugs and Cosmetics Act, 1940 and the Cosmetics
Rule 2020, qua the goods in question, the following appears to be the apparent
requirement of law:
(i) The import of the goods in question which are Cosmetics certainly falls
within the expression of import as defined under Section 2(23) i.e.,
bringing into India from a place outside India and the term India as
defined under Section 2(27) includes the territorial waters of India and not
the port of arrival or the goods being warehoused, the warehouse being on
Indian territory, meaning thereby that the goods are imported goods once
they enter the territorial waters of India.
(ii) Such goods would be imported goods within the meaning of Section
2(25) being brought into India from a place outside India, not cleared for
home consumption.
(iii) The goods are prohibited goods within the meaning of Section 2(33),
the import of which is subject to any prohibition under the Customs Act or
“any other law for the time being in force”;
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(iv) Also an ‘illegal import’ within the meaning of Section 11A(a) means
the import of any goods in contravention of the provision of the Customs
Act “or any other law for the time being in force”.
34. Thus, necessarily by incorporation of the words “any other law” in the
provisions of Section 2(33) of the Customs Act, read with the Drugs and
Cosmetics Act 1940 and the Rules framed thereunder become ipso facto
applicable to any imports apart from the applicability of the provisions of the
Customs Act. In such context, Section 10 of the Drugs and Cosmetics Act (supra)
is a provision which prescribes prohibition on import of certain drugs or
cosmetics, when such provision ordains that no person shall import any Drug or
Cosmetic for the import of which a licence is prescribed, and otherwise than
under such license thereby making a prior licence mandatory for the imports.
35. Further, Section 10 of the Drugs and Cosmetics Act, 1940 is required to be
read with the Cosmetics Rules 2020, and more particularly, Rule 12 providing for
import of Cosmetics which clearly provide that no cosmetic shall be inter alia
imported into India, unless the product has been registered in accordance with
these rules by the Central Licensing Authority and making further provisions for
application for registration of a Cosmetic product intended to be imported into
India.
36. It is, thus as clear as the daylight, that as per the provisions of Section 10 of
the Cosmetics Act, no import of Cosmetics could have been undertaken by the
petitioner without a licence, as rightly contended on behalf of the Respondent.
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Admittedly the goods in question were imported into India without a licence.
This was not permissible, considering the conjoint effect of the aforesaid
provisions. Thus, the provisions of Section 2(33) which define prohibited goods
to inter alia mean any goods the import of which is subject to the prohibition
either under the Customs Act or “any other law for the time being in force”, stand
breached and/or not complied thereby rendering the goods in question
“prohibited goods”.
37. Thus, the goods in question as imported by the petitioner being prohibited
goods, the provisions of Section 110 of the Customs Act providing for seizure and
the provision of Section 111 providing for confiscation of improperly imported
goods, would stand attracted and applicable. This more particularly, clause (d) of
Section 111 which provides that the goods would be liable for confiscation when
goods which are imported or attempted to be imported or are brought within the
Indian Customs Waters for the purpose of being imported, contrary to any
prohibition imposed by or under the Customs Act or any other law for the time
being in force. In such circumstances, applying the statutory provisions as
discussed hereinabove, to the goods in question, which were imported by the
petitioner without a license, the legal character of the goods certainly is of these
goods being “prohibited goods” as defined under Section 2(33) of the Customs
Act.
38. On the aforesaid complexion, the contentions as urged on behalf of the
petitioner are now required to be considered. The case of the petitioner is that the
petitioner had imported the goods only for the purpose of warehousing, as seen
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from Bills of Entry for warehousing, presented by the petitioner for the goods to
be kept in the warehouse and thereafter to be re-exported being its contention.
The petitioner has also contended that for such reason there was no requirement
of a license to be obtained before the said import. We do not agree on such case of
the petitioner. Moreover, such contention of the petitioner militates against the
clear provisions of Section 10 of the Drugs and Cosmetics Act read with the
Cosmetics Rules 2020 which stand clearly attracted nay incorporated in the
provisions of the Customs Act, as noted by us hereinabove. Thus, merely for the
purpose of warehousing, such goods could be imported, i.e., brought into the
Indian territorial waters, is an untenable contention, which has no legs to stand,
considering the effect of the aforesaid provisions of the Customs Act read with the
Drugs and Cosmetics Act, 1940 read with the Cosmetics Rules, 2020.
39. We are hence in agreement with Mr. Mishra, learned counsel for the
Revenue drawing the Court’s attention to the reply affidavit, to contend that there
was never an intention of the petitioner that the goods be imported only for the
purpose of warehousing and/or re-export. Such case of the petitioner appears to
be a complete afterthought being presented before the Customs Authorities as
also before this Court, that the goods be permitted to be re-exported as they were
not meant to be cleared for home consumption. We do not find any material
whatsoever to the effect that there was any prior intention before the imports were
undertaken, that the goods were meant to be only stored i.e., being imported only
for warehousing in India and thereafter to be re-exported. This is not recognized
in law. If this was to be the sole intention, the petitioner could not have applied
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for a CDSCO licence in May, 2025. The clear provisions of the Drugs and
Cosmetics Act and the Cosmetics Rules 2020 as applicable to the imports of
Cosmetics do not conceive a situation, that such goods can be brought into
territorial waters merely for the purpose of warehousing and/or on that basis, that
after the arrival of the goods, a license can be applied. This is totally unacceptable
and in fact illegal. The provisions of law as discussed hereinabove do not permit
that these goods can be brought into the Country only for the purpose of
warehousing and that too contravening and/or circumventing the provisions of
law. The consequence of such contentions as urged on behalf of the petitioner,
would be to the effect that Indian territory permits prohibited goods to be
brought into India, merely for the purpose of warehousing, on a specious
consideration that warehousing is cheaper in India than in other countries, and
therefore such unlicensed imports be permitted, for the goods to be ultimately re-
exported. This would be too far fetched. We do not gather any such intention
under any provisions of law as urged before us. The imports in question being per
se illegal cannot be labelled to be legitimate or legal, merely because the petitioner
intends to re-export the goods and for which no duty according to the petitioner
is attracted.
40. We may observe that at the first blush, the contention of Dr. Kantawala
appeared to be attractive, that as the Bills of Entry presented by the petitioner
were for warehousing, the goods were intended to be re-exported, hence, the
provisions of Section 69(1) would clearly become applicable to the effect that any
warehoused goods may be exported to a place outside India, without payment of
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import duty. However, the fallacy in such contention is that Section 69 would
apply only to the warehoused goods which are legally “imported into India” or in
accordance with law and which are not prohibited goods. The reason being that
the very foundation of these goods to remain stored in a warehouse, even for the
purpose of re-export, can only be under the legal character of the goods is that the
same are not prohibited or contraband and/or are lawful goods. If the goods are
prohibited goods, then certainly they fall within the purview of the relevant
provisions of the Customs Act, for which appropriate action needs to be taken
against such goods, including confiscation by following the procedure in law. We
are, thus, not persuaded to accept the petitioner’s contention that in the fact
situation, Section 69(1) would become applicable to the goods in question.
41. The reliance as placed on behalf of the petitioner on the decision of the
Supreme Court in Garden Silk Mills Ltd. Vs. Union of India 3, would not assist the
petitioner and more particularly when reliance is placed on paragraph 15. The
principles of law as laid down in such decision are in the context of the Court
considering the provisions of Section 12 of the Customs Act providing for
dutiable goods. In such context, the question which fell for the consideration of
the Supreme Court was to the effect, that while assessing Customs duty payable in
respect of imported goods, whether the Customs Authorities can add/include
landing charges in arriving at the value of those goods. The Customs Authorities
in determining the value of the goods, in ascertaining the amounts of duty, added
to the CIF price, the landing charges, which were paid to the port trust authorities
3 1999 (113) E.LT. 358 (S.C.)
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and on payment of such Custom duty, the goods were cleared and used by the
appellants. On such backdrop, the appellant filed Writ Petition before the High
Court contending that landing charges which were paid at the rate of 3/4% of the
CIF value of goods, were wrongly added while arriving at the assessable value of
those goods and therefore, the authorities be directed by the High Court to refund
Rs.69,030.60 which was the amount of duty relatable to the landing charges. The
High Court opined that the Customs Authorities had rightly added the landing
charges to the CIF value of the goods for the purpose of determining the customs
duty, hence, no refund was due to the appellants. It is in such context, the Court
examined provisions of Section 12 and made the following observations as relied
upon on behalf of the petitioner in paragraph 15 and 16:
15. The question as to whether the import is completed when the goods
entered the territorial waters and it is the value at that point of time which is to be
taken into consideration is no longer res integra. This contentions was raised in
Union of India v. Apar Industries Limited -1999 (112) E.L.T. 3 (S.C) = 1999 (5)
J.T. 160. In that case the day when the goods entered the territorial waters, the rate
of duty was nil but when they were removed from the warehouse, the duty had
become leviable. The contention which was sought to be raised was that what is
material is the day when the goods had entered the territorial waters because by
virtue of Section 2(23) read with Section 2(27) the import into India had taken
place when the goods entered the territorial waters. Following the decision of this
Court in Bharat Surfactants (M/s) (Private) Ltd. and Another v. Union of India
and Anr, 1989 (43) E.L.T 189 (S. C.) = 1989 (4) SCC 21 and Dhiraj Lal H. Vahra
and Ors. Vs. Union of India and Ors. 1993 (66) E. L. T. 551 (SC) = 1993 (supp.
3) SCC 453, this Court came to the conclusion in Apar’s Pvt. Ltd., case that the
duty has to be paid with reference to the relevant date as mentioned in Section 15
of the Act.
16. It was further submitted that in the case of Apar’s Private Limited this Court
was concerned with Section 14 and 15 but here we have to construe the word
“imported” occurring in Section 12 and this can only mean that the moment
goods have entered the territorial waters, the import is complete. We do not agree
with the submission. This Court in its opinion in Re. The bill to Amend Section
20 of the Sea Customs Act, 1878 and Section 3 of the Central Excise and Salt Act,
1944, 1964 (3) 787 at page 823 observed as follows:
“Truly speaking, the imposition of an import duty, by and large, results in a
condition which must be fulfilled before the goods can be brought inside the
customs barriers i.e. before they form part of the mass of goods within thePage 36 of 40
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It would appear to us that the import of goods into India would commence
when the same cross into the territorial waters but continues and is completed
when the goods become part of the mass of goods within the country; the taxable
event being reached at the time when the goods reach the customs barriers and the
bill of entry for home consumption is filed.”
(emphasis supplied)
42. We are hence unable to accept the petitioner’s contention that the
aforesaid observations would assist the petitioner to support its contentions that
the imports in question would be regarded to be legal. Certainly in such case, the
Supreme Court was not considering any issue similar to the one involved in the
present proceedings.
43. In the light of the above discussion, we are also not inclined to consider the
petitioner’s contention on the valuation report as submitted by the chartered
engineer as appointed by the department to value the goods, as we do not intend
to delve on such contentions at this stage in the present proceedings. Suffice it to
observe that the valuation needs to be undertaken only by a person who is an
expert, considering the nature of the goods. All contentions on such issue are
accordingly kept open.
44. Considering the aforesaid discussion, we are in agreement with Mr. Mishra,
when he places reliance on the decision of the Division Bench of the Madras High
Court in ALM Enterprises Vs. Commissioner of Customs (Imports), Chennai 4, in
which the Court considering the provisions of the Rule 125 of the Drugs and
Cosmetics Rules, 1945 [as applicable at the relevant time, now repealed by the
Cosmetics Rules 2020], the Court reached to a similar conclusion applying the
4 2017 (353) E.L.T. (Mad)
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provisions of Rule 129, it was held that the import of Cosmetics without
obtaining the Registration certificate (in form 43) was not a legal import. The
relevant observations made in such context are required to be noted which read
thus:
“37 It also takes us to the notification G.SR.426(E) dated 19-5-2010 published by
the Ministry of Health and Family Welfare Department, Government of India.
Through this notification the Drugs and Cosmetics (4th Amendment) Rules, 2010,
framed in exercise of powers conferred by Sections 12 and 33 of the Drugs and
Cosmetics Act, 1945 have been notified. By this amendment, Rule 129 has been
substituted and the new Rule 129 which was brought into force with effect from
1st April, 2011 reads as under-
“129. Registration of cosmetic products imported into the country. –
No cosmetic shall be imported into India unless the product is
registered under the rules by the licensing authority appointed by
the Central Government under rule 21 or by any person to whom
such powers may be delegated under rule 22.”
Thus, no cosmetic, shall be imported into India unless that product is
registered under the rules by the licensing authority. Rule 129A dealt with
the Form and manner of application for Registration Certificate for
importing cosmetics referred to above. Such application shall be made for
Registration of cosmetics intended to be imported into India in Form 42 by
every importer and shall be accompanied by a fee of 250 US dollars or its
equivalent to Indian rupees for each brand of cosmetics. Under Rule
129(C), the licensing authority was required to issue a Registration
Certificate in Form 43 subject to the conditions contained therein. There is
no material available on record to vouch for any such Registration
Certificate in Form 43 has been obtained by or on behalf of the importer.
Under Rule 129(D), the Registration Certificate so issued shall be valid for
a period of three years from the date of its issue unless it is sooner
suspended or cancelled. Under Rule 129(G), no cosmetic shall be imported
unless it complies with the specifications prescribed under Schedule S and
Schedule Q or any other standards of quality and safety applicable to it and
other provisions under the rules. Under Rule 129(H), no cosmetic shall be
imported unless it is packed and labeled in conformity with the Rules in
Parts XV. When we spare a look at Form 43, the Registration Certificate,
from Para 2 thereof the following becomes clear
“2. Name(s) of cosmetics, along with their brand names and pack
size(s) and vanants which may be imported under this
Registration Certificate
(1)
(2)
(3)”
The import of cosmetics made without obtaining the Registration Certificate
(Form 43) is in clear violation of the above provisions. Thus, every importer ofPage 38 of 40
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WP957_2026.DOCcosmetics was required to comply with the above regulatory regime prescribed by
the Drugs and Cosmetics (4th Amendment) Rules, 2010 The finding of fact
recorded by the adjudicating Commissioner of Customs in the present case is that
this legal regime has not been complied with by the importer…..
39. In the instant case, it is recorded in Para 49 of the Order-in-Original that all
cosmetic products Including air fresheners and other toiletries which are imported
for sale in India need to be registered with the licensing authority as defined under
Rule 21 of Drugs and Cosmetics Rules, 1945. In the instant case, the goods are
found imported without obtaining the registration certificate from the Central
Drug Standard Control Organization and therefore, it is found that the importer
did not possess necessary permission/registration certificate from the competent
authority under the Drugs and Cosmetics Rules. 1945. In other words, goods
which are liable to be Imported subject to fulfilment of certain conditions, when so
imported without fulfilling or satisfying such conditions amount to importing
prohibited goods in terms of Section 11 read with Section 125 of the Act.
Therefore, we find no merit in the contention canvassed that such of those
clandestinely imported cosmetics and toiletries goods should also be permitted to
be redeemed by the Commissioner of Customs and failure to do so vitiates the
order is without any merit or substance. The Commissioner of Customs has no
power to waive the conditions subject to which such cosmetic products can be
imported as he is not the Competent Authority but someone else Hence, the
exercise of discretion has been properly carried out by the Commissioner of
Customs.”
(emphasis supplied)
45. Before parting, we may observe that the goods in question are meant for
human use/consumption. The Drugs and Cosmetics Act, 1940 is an Act intended
to regulate the import, manufacture, distribution, sale of drugs and cosmetics.
Thus, such legislation with the rules framed thereunder prescribe standards to be
complied by the drugs being imported, which may be cleared, sold and/or
distributed in India. Such products more particularly being imported, concern the
health of the people, wherever, even when the goods are sought to be re-exported.
Thus, the provisions of the Drugs and Cosmetics Act and the Rules framed
thereunder read with provisions of the Customs Act, qua any imports are required
to be strictly implemented, and more importantly, considering the larger public
interest and the ill-effects of the sub-standard and unlicensed products, when they
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are being imported in a clandestine manner, and smuggled into the Indian
territory.
46. In the light of the above discussion, we find no merit in this petition. It is
accordingly rejected. No costs.
(AARTI SATHE, J.) (G. S. KULKARNI, J.)
Signed by: Vidya S. Amin Page 40 of 40
Designation: PS To Honourable Judge 27 February, 2026
Date: 09/03/2026 21:08:47