Judgment :- P. JYOTHIMANI, J. W.A.No.1493 of 2011, W.P.No.21642 of 2011 and W.A.No.1494 and W.P.No. 21705 of 2011 are filed by the M/s D.K.Enterprises and M/s Kawaral & Co. Respectively. 2. These two writ appeals are directed against the order of the learned Judge in W.P.No.14248 of 2011 and 14535 of 2011 filed by the above said parties challenging the communication of the drug authorities requiring licence in Form 10 of the Drugs and Cosmetic Rules, 1948. 3. The petitioner in W.P.No.14248 of 2011 is an importer of L-Leucine and L.Valine, which according to the writ petitioner are not for Pharma and drug use. In addition to that, the following items which are also stated to be used as Pharmaceuticals or drugs. S.No Name of Goods Covered under Bill of Entry No. Date of Bill of Entry 1 L-Leucine & L.Valine (not for pharma and drug use) 548872 24.06.2010 2 L-Creatine & L-Taurine (not for Pharmaceutical and drug use) 548873 24.06.2010 3 D-Calcium Pentothenate (not to use in drugs and medicine) 548874 24.06.2010 4 Suphadiazine(not for medical use) 548875 24.06.2010 Likewise, the petitioner in W.P.No.14535 of 2011 relates to importer of Siliybum which is stated to be Beverage Grade material not for medicinal use covered under the Bill of Entry No.548876 dated 24.06.2010. 4. As it is stated in W.A.No.1559 of 2011, the prayer is similar and the writ petitioners have not only prayed for quashing of the direction issued by the drug authorities for the production of Form 10 licence of the Act, but also for a direction to release the goods without imposing any condition. 5. The learned Judge by disagreeing with the decision of the learned Single Judge of this Court in W.P.No.4841 of 2010 and relying upon a report of the Central Drug Laboratory, Kolkota, has doubted about the labels affixed on the containers and found that an appropriate investigation must be done and in the event of a finding that they are drugs to be used for human being, necessary licence in a particular form is to be directed to be obtained. It is with that view, the learned Judge has directed the respondents in the writ petition to adjudicate the issue based on the impugned notice issued. It is with that view, the learned Judge has directed the respondents in the writ petition to adjudicate the issue based on the impugned notice issued. It is against the said order, the importers have filed the present appeals on the ground which are similar to that of the grounds taken by the first respondent in WA.No.1559 of 2011. 6. In accordance with the directions issued by the learned Single Judge, the authorities have passed orders holding that the above said goods imported are intended for human use and they are to be treated as drugs, in spite of "not of pharma and drug use'" and rejected the declared value, re-determining the value as per the provisions of the Customs Valuation rules, apart from imposing penalty and fine, directing the appellants to re-export the said materials. 7. In view of the consequential order passed by the authorities, based on the direction given by the learned Single Judge in W.P.No.4841 of 2010, we are of the view that no further orders are necessary in W.A.Nos.1493 and 1494 of 2011, except reiterating our findings given in detail in W.A.No.1559 of 2011. 8. When once the right has been conferred under statutory rule, the same cannot be taken away by any executive fiat, as it was held by the Supreme Court in Priya Blue Industries Limited Vs. Commissioner of Customs (Preventive) reported in 2004 (172) E.L.T 145 . The relevant portion is extracted as follows: "6.We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India)'s case (supra). Once an order of Assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal that order stands. So long as the order of Assessment stands the duty would be payable as per that order of Assessment. A refund claim is not an appeal proceeding. The officer considering a refund claim cannot sit in appeal over an assessment made by a competent officer. The officer considering the refund claim cannot also review an assessment order." 9. Insofar as the findings of the authorities, the respondents have challenged the impugned order in the above two writ petitions. A refund claim is not an appeal proceeding. The officer considering a refund claim cannot sit in appeal over an assessment made by a competent officer. The officer considering the refund claim cannot also review an assessment order." 9. Insofar as the findings of the authorities, the respondents have challenged the impugned order in the above two writ petitions. In this case, it is not in dispute that while importing, the petitioners have complied with the requirements as per Rule 43 read with schedule D of the Drugs and Cosmetics Rule, 1945. The respondents have simply relied upon certain admissions stated to have been made by the drug authorities before the learned Single Judge in W.P.No.14248 of 2011 and 14535 of 2011 for the purpose of coming to a conclusion that the materials referred to are to be treated as drugs for human use. The impugned order also refers to a settlement arrived at before the Delhi High Court between the parties with certain conditions and it wholly depends upon the report of the Assistant Drug Controller, Chennai Port, the authority has come to the conclusion that the materials imported are intended for human use. The impugned order also refers to a settlement arrived at before the Delhi High Court between the parties with certain conditions and it wholly depends upon the report of the Assistant Drug Controller, Chennai Port, the authority has come to the conclusion that the materials imported are intended for human use. The portion of the impugned order which is relevant is as follows: "29.The importer/importer's Advocate in his written submissions dated 26.07.2011 and during the PH conducted on 01.08.2011 has interalia stated that the items in question are Ayurvedic Medicaments not falling within Schedule I of the Drugs and Cosmetics Act; that the basic requirement under Section 3(a) to be classified as a 'drug' is that it should be coveredby Schedule I of the Act; that since L-Leucine & L-Valine: D-Calcium Pantothenate; and Suphadiazine are not covered by Schedule I of the Act there is no reason or justification to treat the said materials as drugs falling within the goods under import are drugs the benefit of Rule 43 of the Drug Rules have to be extended to them since it squarely complies with the requirements of the said provisions; that additionally the above position of law has been admitted to by the Drug authorities before the Hon'ble Madras High Court in W.P.No.4841 OF 2010(Vide Para 6) and as such, there was no reason to hold a different view; that the department has conducted an analytical examination of the samples of all the materials imported and obtained a report that these materials are 'not of standard quality within the meaning of the Act; that the material are not fit for manufacture of drugs and cannot therefore be treated as drugs and that the only consequence that follows is that they are only capable of use for other purposes; that the term 'not of standard quality' would only mean that they are not fit for use in the manufacture of drugs and that it cannot be taken to mean that the imported goods are not suitable for any other use or to treat their import as prohibited particularly when the notice itself admits that the substances are capable of use in the manufacture of beverages/Ayurveda medicaments; that the testing of the samples by treating them as 'P or P medicament' is contrary to the provisions of Section 8 read with the schedule mentioned therein; that the Drug Authorities having averred before the Delhi High Court that the No Objection prescribed is in respect of obtained substances which are pharma grade and which are capable of other uses also which stands against the application of the restrictions to the items imported which are admittedly non-pharma substances (vide para 8 of the Delhi High Court order) ; that Ayurvedic medicines are treated differently under the Drugs and Cosmetics Act under Chapter IV where there is no provision for treating them as 'not of standard quality’; that the whole case of the department being based on the report of the Assistant Drug Controller, Chennai Port which report has been made with full prejudice without taking note of the appropriate provisions of the law inspite of the authority going on record before the Hon'ble High Courts on the correct position of law cannot be relied upon in evidence and that the end use of the drugs according to the importers is not for manufacture of drugs and as such they are willing to provide any kind of evidence to the satisfaction of the department to show that they are not used in the manufacture of drugs" 10. It is with that view in mind, the impugned order has been passed by categorizing that imported goods are to be treated as drugs, also which is to be also used for human purpose as medicine and inasmuch as Form 10 licence has not been obtained by the petitioners, the authorities had directed the petitioners to re-export the goods, apart from imposing penalty and fine in the order impugned. 11. As stated above, the legal position is very clear that inasmuch as under Rule 43 read with schedule D of the said Rules, the petitioners are entitled for exemptions and there is absolutely no question of asking for licence in Form 10 and the finding in that regard, cannot be accepted. The impugned order relies upon an order passed in a batch of cases in the Delhi High Court and before the Delhi High Court certain conditions have been accepted by both the parties for the purpose of import. Recording the said conditions, orders have been passed in the writ petitions. Those were cases where the traders have accepted certain conditions in the form of suggestions which are as follows: "Import by Traders(other than Actual Users) It is proposed that the scope of the actual user may be extended to include the traders who sell the citric acid directly to the actual users. In this situation, the trader will have to comply with the following requirements:- (i) He will be required to submit a legal undertaking to the office of DCG (I) or to the Zonal Office or Sub Zonal Office or to the port office as the case may be that he will sell the consignment of citric acid to the actual user. (ii) The actual user will also have to furnish legal undertaking to the office of DCG(I) or to the Zonal office or Sub Zonal or to the port office as the case may be that he will be buying the consignment of citric acid from the trader. (iii) The seller and buyer have to maintain books and records of the transaction so as to verify the same. (iv) They will allow the Drug inspectors from the Central Drugs Standard Control Organization (CDSCO) to inspect the books and records as well as the actual usage of the Citric Acid. (iii) The seller and buyer have to maintain books and records of the transaction so as to verify the same. (iv) They will allow the Drug inspectors from the Central Drugs Standard Control Organization (CDSCO) to inspect the books and records as well as the actual usage of the Citric Acid. (v) The consignment documents like certificate of analysis, Bill of Entry, invoice etc, should mention 'Not for Medicinal Use' For Small Quantities: It is proposed that the consumption of Citric Acid not exceeding 2 Kg for domestic and other ancillary purposes will be allowed to be imported without the above mentioned conditions. Labeling/packing and document requirement of Citric Acid Bags/containers. The bags/containers carrying citric acid along with other requirements under of labeling and packing should also mention 'Citric Acid" - Not for Medicinal use" For all subsequent import by the same traders reconciliation data of previously imported quantity shall be maintained. The aforesaid proposal will cover all the consignments o citric acid which had already been imported and which may be imported in future. The already imported consignment of citric acid to be released on compliance of above mentioned proposal by the importer. In the course of hearing, it has been further agreed that following conditions be incorporated in additional to the above suggestions: (a) At the time of sale by the seller, namely the respondents herein, they shall obtain a certificate/undertaking from the actual user/purchaser to the effect that the citric acid would not be used for medicinal purpose. (b) The actual user/purchaser shall also give an undertaking that he would not sell it to anyone who shall use it for medicinal purpose. (c) The undertaking shall be given in the format that shall be given by the Additional Drugs Controller. Needless to say, the format shall not travel beyond the settlement." 10. It is in view of the said settlement arrived at between the parties, the Division Bench of Delhi High Court, has set aside the learned Single Judge's order, however leaving open the legal issues. Such settlement arrived at between the parties cannot be a reason for the respondents to pass the impugned order, by-passing the statutory provisions and the benefits conferred to the importer under Rule 43 of the Rules. Such settlement arrived at between the parties cannot be a reason for the respondents to pass the impugned order, by-passing the statutory provisions and the benefits conferred to the importer under Rule 43 of the Rules. At the risk of repetition it is reiterated that it is not as if the respondent authorities have no legal right to enforce the provision of Chapter III of the Act in the event of failure of the writ petitioners in following strictly the conditions contemplated under Schedule D of the Rules. 12. Learned counsel for the petitioners would rely upon Regulation 6(l) of Handling of Cargo in Customs Areas Regulation which reads as follows: "Subject to any other law for the time being in force, shall not charge any rent or demurrage on the goods seized or detained or confiscated by the proper officer" 13. The law is well settled that a statutory rule cannot override the executive fiat as it has been held in K.Kuppusamy and another Vs. State of T.N. and others reported in (1998) 8 SCC 469 . 14. In such view of the matter, the writ appeals are allowed and the impugned orders in writ petitions are set aside with a direction to the first and second respondents to release the said goods to the petitioners on the declared value, on verification of proper compliance of rule 43 read with Schedule D of the Rules and the label, which has been affixed, and such exercise shall be effected within a period of two weeks from the date of receipt of copy of this order . The writ petitions are also allowed. However, it is made clear that insofar as it relates to the valuation of imported goods are concerned, it is open to the parties to move before the CESTAT, in which event, any condition that may be imposed by the Tribunal shall be complied with by the petitioners. It is also made clear that except one of the item in respect of Bill of entry, others which are already time barred are to be re-exported. It is also made clear that if the authorities come across any material that the imported substance cleared as an exempted item is not used for the declared purpose, it is always open to the respondents to proceed against the petitioners in accordance with law. No costs. Consequently, connected miscellaneous petitions are closed.