Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs M/S Uni Colloids Impex Pvt.Ltd on 1 May, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT - I
Appeal No.C/11279/2014-DB (Application No.C/Stay/12021/2014)
Arising out of: OIA No.127/2014/Cus/Commr(A)/AHD, dt.24.03.2014
Passed by: Commissioner of Customs (Appeals), Ahmedabad
For approval and signature:
Mr.M.V. Ravindran, Honble Member (Judicial)
Mr. H.K. Thakur, Honble Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant:
M/s Uni colloids Impex Pvt.Ltd.
Respondent:
CC Ahmedabad Represented by:
For Assessee: Shri Hari Shankar, Adv., Shri K.D. Mankar, Adv.
For Revenue: Shri K. Sivakumar, Addl.Commissioner (AR) CORAM:
MR.M.V. RAVINDRAN, HONBLE MEMBER (JUDICIAL) MR. H.K. THAKUR, HONBLE MEMBER (TECHNICAL) Date of Hearing:21.04.2014 Date of Decision:01.05.2014 Order No. A/10905/ 2014, dt.01.05.2014 Per: M.V. Ravindran
1. When this Stay Petition was called out, we find that on 08.04.2014, this matter was called out and we had directed both sides that appeal itself will be disposed of on next date as the issue is of live consignments in the docks. Accordingly, after disposing the Stay Petition filed, we take up the appeal for disposal.
2. In this appeal the core issue relates to eligibility for duty exemption in connection with import of Amygluten 160 (Wheat Gluten) imported by the appellant under a transferable duty free import authorization dated 30.5.2012 (DFIA for short) in terms of the Notification No. 98/2009-Cus.dated 11.9.2009. The DFIA was issued to the exporter on the basis of SION E-5 for Biscuits. Having completed the export obligation, on 02.07.2013, the exporter (authorization holder) obtained endorsement of transferability from the licensing authority on the said DFIA, and the transferrable DFIA was transferred to the appellant. The appellant being a bona fide transferee sought duty free clearance of Amygluten 160 (wheat gluten) imported by it. The same was denied by putting conditions. Appeal filed by the appellant before Commissioner (Appeals) was dismissed.
3. The following background facts are relevant for deciding the issue:-
3.1 The appellants presented a Bill of Entry no. 4618667, dt. 12.2.2014 for duty free import of Wheat Gluten, under a Transferrable DFIA permitting duty free import of Wheat Flour, against export product Biscuits which were already exported and transferability endorsed on the license. According to the appellants, Amygluten (Wheat Gluten) is superfine wheat flour. It is also called vital wheat gluten which is nothing but refined Wheat Flour. As per the appellant the imported Wheat Gluten is covered under the description of Wheat Flour eligible for duty free clearance, and is required for or capable of use in the manufacturing of Biscuits. In support of the contention references from Books and Internet were placed on record.
3.2 A BE Query Report dated 17.2.2014 was issued by the proper officer, the text of which is as hereunder:-
Per DGFT Policy Circular No. 13 dated 31/1/2011 SION norms Sr. No. E 5 for Biscuits do not include Gluten. Please clarify the same. You are requested to produce the undertaking for authorization holder; Wheat gluten has been used in export product. i.e. Biscuits if the undertaking not the DFIA will be denied. 3.3 The undertaking referred to in the query memo related to the undertaking mentioned in Para 2 of the DGFTs Public Notice 35 dated 31.10.2013 which states that in case where exports are fully or partly completed before 01.08.2013, the corresponding import of inputs which were actually used in the export product shall be allowed subject to the undertaking from the authorization holder. Since the query was in the nature of a decision, an appeal was preferred thereagainst before the Commissioner of Customs (Appeals), who entertained the appeal. When the matter was posted for hearing before the Commissioner (Appeal) on 19.03.2014, a detailed order-in-original dated 18.03.2014 was produced by the departments representative before the Commissioner and the appellants further submissions thereon were also incorporated in the appeal. Commissioner (Appeals) dismissed the appeal on merits vide the impugned Order-in-Appeal dated 24.3.2014 after hearing the appellant as well as the representative of the Department, and taking on record written submissions of both sides.
3.4 Aggrieved by the same the appellants are before us in the instant appeal.
4. The contentions of the appellant in support of their case can be briefly summarized as under:-
(i) The imported Amygluten 160 (Wheat Gluten) is vital wheat gluten and it is nothing but refined Wheat Flour which is used in the manufacture of Cracker and puff biscuits.
(ii) The input wheat flour is mentioned in the body of the DFIA and the same covers refined wheat flour (Wheat Gluten) as there is no stipulation stating that Wheat Gluten is not permissible.
(iii) The item is not listed in the sensitive list so as to require matching of the technical specification of the imported input with that used in the resultant product as stipulated in the first proviso to condition no. (1) of the notification no. 98/2009-Cus.dt 11.9.2009.
(iv) Being a transferee of the DFIA, this requirement is not applicable to the importers to declare the contents of the inputs in the resultant product for availing the duty free benefit. DFGT Policy Circular no 72/2008 dated 24.3.2009 and CBEC Circular 46/2007-Cus dated 20.12.2007 fully support the claim of the appellant. In Policy Circular dated 24.3.2009 it was clarified that:-
2. The matter was examined in detail and it has been decided to clarify to all concerned that since the objective of SION is to allow duty free import of the inputs which are actually used or are capable of being used in the export product, the exporter has the flexibility to import the alternative input / product mentioned in the SION. In the CBEC Circular dated 20.12.2007 it was clarified that-
3. It is, therefore, clarified that except for the items specified in paragraph 4.55.3 of the Handbook of Procedures, Vol. I 2004-09, in all other cases a correlation between the inputs under import with those used in the exported product is not required to be established and that clearance under DFIA scheme may be allowed if other conditions of the scheme and Customs notification referred to above are fulfilled.
(v) The DFIA in question was issued on 30.05.2012. It is settled law that the policy provisions prevailing on the date of issue of a licence shall govern the rights and liabilities under the licence in terms of the provisions contained in Para 4.2.2(b) of the FTP. Subsequent amendments to the Policy cannot take away the right which accrued on the date of issue of the licence since the government has no power to amend the Policy retrospectively as held by the Courts.
(vi) The appellant disputed applicability of the DGFTs notification no.31 dated 01.08.2013 which amends the Policy with effect from 01.08.2013 as also of PN 35 dated 31.10.2013 which allows only those inputs which have been specifically indicated in the shipping bill at the time of discharge of export obligation (EODC) or at the time of redemption.
(vii) The DGFTs Policy circular (PC) no. 13 dated 31.01.2011 which says that import of gluten is not permissible under SION E-5 for biscuits does not constitute to be a legal basis to deny the duty free benefit unless there is a corresponding amendment of the SION E-5 to delete import of wheat Gluten. The same circular also mentions that the duty free import of artificial sweeteners is not permitted. However, it is only on the basis of the DGFT Public Notice No. 93 dated 01.02.2012 amending SION, that the non-permissibility of importing alternative goods on import of artificial sweeteners became legally effective. There being no corresponding amendment in SION to prevent import of wheat gluten, the circular dated 31.01.2011 did not have any legal basis to prevent duty free import of Wheat Gluten as mentioned in the said circular.
(viii) The PC no.13 was issued in the context of the entry Atta/Maida /flour figuring in the SION E-5 biscuits (with or without dry fruits) before its amendment vide notification no. 93 dated 01.02.2012 . The amended entry read as Biscuits and the corresponding input no. 1 was amended to read as Wheat Flour. Input no. 2 was amended to Cane Sugar and it was specifically noted that:-
Note:- 1. Import of Lactose / Mannitol / Sodium Saccharin and other Articficial Sweetening Agents is not allowed as substitute inputs against import items No. 2. This has also been spelt out in Policy Circular No. 13 dt. 31.01.2011. No such Note however was inserted for restricting import of Wheat Gluten against Import Item no. 1 i.e. Wheat Flour.
(ix)) The Jt.DGFT Hyderabad has in his letter dated 30.07.2007 clarified to the Commissioner of Customs, Chennai that wheat Gluten Flour is a technical characteristics of wheat Flour. The communication dated 30.10.2013 from the Ministry of Food processing to the DGFT New Delhi annexed to the appeal inter alia says that Gluten Flour is wheat flour with most of the starch removed leaving 70% of proteins in it.
(ix) Consequently even though the appellant could not produce the evidence to show that whether or not Wheat Gluten was actually used in the manufacture of the Exported biscuits by the Licence holder, on the basis of the settled law which says that import of inputs which are required for use in the manufacture of the resultant products is permissible under the DFIA, the duty free import of wheat gluten is legally permissible against the export of biscuits.
(xi) The DFIA was made transferable on 02.07.2013.
5. The grounds for dismissal of appeal by Commissioner (Appeals), on which emphasis was placed by the departmental representative, are summarized as under-
(i) The appellants reliance on the DGFTs Circular 72/2008 and CBECs Circular 46/2007-Cus is not well placed. DGFTs Circular 72/2008 is not applicable in this case because of another Circular No. 13 dated 31.01.2011 which specifically excludes wheat gluten as an item of import against export of biscuits.
(ii) Para 3 of the Circular No. 46/2007- Cus says that cases where SION is applicable are excluded from the preview of the circular. In this case the SION has been notified and hence the circular 46/2007-Cus is not applicable.
((iii) The appellants contention that in the absence of a corresponding amendment to the SION disallowing the import of wheat gluten on the line of amendment carried out through PN No. 93(RE-2010/2009-14) on 1st February 2012 to disallow the import of sweeteners shows that the import of gluten could not be disallowed only on the basis of the circular is incorrect since the DGFT vide Circular no. 13 has clarified what evidently is the legal position viz. not to allow Wheat Gluten under the entry wheat flour. The matter being so clear, no PN was required to be issued.
(iv) Though the term Wheat flour is not defined in the Policy, the term wheat flour should be interpreted in a manner as understood in trade and commercial parlance and not by the Technical coverage of the item. In commercial parlance wheat gluten is different from wheat flour. Hence its duty free import cannot be claimed under the entry Wheat Flour. In terms of the Para 2.3 of the FTP, DGFT is the final authority to provide correct interpretation.
(vi) The orders passed by Commissioner Customs(Appeals) Nhava Sheva and Air Cargo Complex Mumbai permitting duty free import of Amyl gluten (Wheat Gluten) under similar transferable DFIA, have not been agreed with.
(vii) The appellants were bound to furnish an undertaking on the basis of the contents of Para 2 of the PN 35 declaring therein that the inputs actually used shall alone be imported. In the absence of the undertaking the duty free import is not permissible.
6. Both sides were heard at length. We have carefully perused the records before us. Our attention was drawn by both sides towards various Notifications, Circulars, Public Notices and precedents which we have taken into consideration. The appeal has been taken for hearing out of turn for the reason that the case relates to a live consignment and the issue is of recurring nature.
7. We have considered the following notifications, public notices and policy circulars-
Notifications issued under section 5 of FTDR Act:
1. DGFTs notification no.31 (RE-2013)/2009-14 dated 01.08.2013 amending the Foreign Trade Policy with effect from 01.08.2013, by insertion of para 4.1.15 in FTP, and amending para 4.2.3 by adding phrase 4.1.14 and 4.1.15 in place of and 4.1.14
2. Notification 48 (RE-2013)/2009-14 dt. 30.10.2013, amending Para 4.1.15 of the Policy by amending para 2 of earlier Notification 31 of 1.8.2013.
DGFT Public Notices:
1. DGFT Public Notice No. 93(RE-2010/2009-14) dated 01.02.2012 amending SION E-5, inserting Note-1 in tune with earlier policy circular no. 13 dated 31.1.2011 for Cane Sugar but not for Item 1 Wheat Flour.
2. DGFTs PN 35 (RE-2013)/2009-14 dated 31.10.2013 regarding applicability of para 4.1.15 inserted by Notification 31 dt. 1.8.2013 Policy Circulars:
1. Policy Circular no 72 (RE-2008)/2004-09 dated 24.3.2009- 2. The matter was examined in detail and it has been decided to clarify to all concerned that since the objective of SION is to allow duty free import of the inputs which are actually used or are capable of being used in the export product, the exporter has the flexibility to import the alternative input / product mentioned in the SION.
2. Similar Policy Circular 30 (RE-05)/2004-09 dt. 10.10.2005 in DFRC scheme
3. Policy Circular No. 13 (RE-2010)/2009-14 dated 31/1/2011 - SION norms Sr. No. E 5 relied upon in the BE Query Report
4. Policy Circular 3 (RE-2013)/ 2009-14 dt. 2.8.2013 concerning Withdrawal of Policy Circular 30 dt. 10.10.2005 concerning alternative inputs.
8. We have also noted the CBEC Circular 46/2007-Cus dated 20.12.2007, wherein it was clarified that-
3. It is, therefore, clarified that except for the items specified in paragraph 4.55.3 of the Handbook of Procedures, Vol. I 2004-09, in all other cases a correlation between the inputs under import with those used in the exported product is not required to be established and that clearance under DFIA scheme may be allowed if other conditions of the scheme and Customs notification referred to above are fulfilled. Whether Wheat Gluten is Wheat Flour:
9. So far as the issue as to whether or not the item Amygluten 160 (Wheat Gluten) is Wheat Flour, it is seen that the issue was already decided in favour of the appellant by the Commissioner of Customs (Appeals), Air Cargo Complex, Mumbai Zone III vide Order-in-Appeal no. 164/Mumbai-III/2011 dated 12.9.2011 and also by Commissioner of Customs (Appeals), Nhava Sheva Custom House, Nhavasheva vide Order-in-Appeal no. 703(GrVII-I)/2011(JNCH) EXP-97 dated 16.12.2011, which are not reversed, and have been stated to be accepted by the Committee of Commissioners. The technical data on record and the communication dated 30.10.2013 from the Ministry of Food processing clearly support the appellants contention that Wheat Gluten is Wheat Flour in which most of the starch is removed, and even the office of Jt.DGFT, at Hyderabad has clarified in a communication dated 30.7.2007 that Wheat Gluten Flour is nothing but Wheat Flour with specific technical characteristics, and thus eligible for import against Wheat Flour and merits exemption under DFRC scheme. The Commissioner (Appeals) in the instant case has therefore clearly erred in ignoring the settled position. These decisions and clarifications backed by technical literature which are available on record, leave no room for doubt that Wheat Gluten under import is Wheat Flour with specific technical characteristics.
Whether Policy Circular 13 dt 31.1.11 can restrict the scope of inputs in SION no. E-5-
10. The Policy Circular no. 13 dated 31.1.2011sought to suggest that inputs allowed in SION no. E-5 do not include wheat gluten as alternative input against import item no. 1 which included Flour. The said Circular also suggested that import of Lactose / Fructose /Maltose / Mannitol / Artificial Sweetening Agents is not to be allowed under DFIA as alternative inputs against Item no. 2. This Circular was issued without any amendment in the SION norms. Subsequently, vide DGFTs Public Notice no. 93 dated 01.02.2012, SION No. E-5 was amended and a foot note was added which read as import of Lactose/Mannitol/Sodium Saccharin and other Artificial Sweetening Agents is not allowed as substitute inputs against import items No.2. This has also been spelt out in Policy Circular No. 13 dt. 31.01.2011. However, significantly, against Wheat Flour no such restriction was incorporated for import of Wheat Gluten, which is nothing but Wheat Flour with specific technical characteristics, as held above. A perusal of the DFIA shows that there is no endorsement on the same restricting the scope of Item no. 1 i.e. Wheat Flour, to exclude from its ambit Wheat Gluten which is also Wheat Flour with specific technical characteristics. Thus, neither the SION norms nor the DFIA imposes any restriction on the type of Wheat Flour. It is settled law as held by the Honble Bombay High Court in the matter of Narendra Udeshi 2003 (156) E.L.T. 819 (Bom.) that by way of Circulars and Public Notice, restrictions and prohibitions in imports under licence cannot be imposed. The said judgment was upheld by the Honble Supreme Court in U.O.I. v. Narendra Udeshi - 2003 (158) E.L.T. A275 (S.C.). Further, in Sandur Micro Circuits Ltd., 2008 (229) E.L.T. 641 (S.C.) it was held that-
5.?The issue relating to effectiveness of a Circular contrary to a Notification statutorily issued has been examined by this Court in several cases. A Circular cannot take away the effect of Notifications statutorily issued. In fact in certain cases it has been held that the Circular cannot whittle down the Exemption Notification and restrict the scope of the Exemption Notification or hit it down. In other words it was held that by issuing a circular a new condition thereby restricting the scope of the exemption or restricting or whittling it down cannot be imposed The circular had the effect of amending the SION and in our view the SION can be amended only by issue of an appropriate Public Notice and not by Policy Circular. Therefore, in view of the precedents which are binding on us and in the peculiar facts of the instant case, the said Policy Circular no. 13 of 31.1.2011 cannot be relied upon for restricting the scope of term Wheat Flour. It is not in dispute that Wheat Gluten is used as an input in the manufacture of crackers / puff biscuits.
11. Once it is concluded that the imported goods are covered under the scope and ambit of permissible item Wheat Flour, and also that it was capable of being used in the manufacture of Biscuits, it is to be seen whether exemption could still be denied on the ground of nexus and Public Notice no. 35 dated 30.10.2013.
12. In Aditya Birla Nuvo Ltd vs CC, 2010 (249) E.L.T. 273 (Tri. - Bang.), while relying on various precedent decisions of higher judicial foras, this Tribunal held as under-
8.6?We now take up next issue framed by us i.e., issue (g) for discussions.
(g) Whether the appellant has failed to establish nexus as envisaged in advance licensing scheme?
The instant case relates to imports under license issued for actual user condition by the license to the license holder. It is no longer res integra and is a settled law that nexus between the imported materials and export product, is not required to be proved fresh by the transferee/licensee once imported material is otherwise covered by the advance license and the benefit of exemption notification would be available. In Commissioner v. Goodluck Industries - 2000 (120) E.L.T. A66 (Supreme Court), the Honble Supreme Court upheld the Tribunals judgment in Goodluck Industries v. Commissioner - 1999 (108) E.L.T. 818 (Tribunal) laying down the said ratio, and on merits dismissed the same appeal filed by the Commissioner of Customs, Calcutta against the same. In Jayant R. Patel v. CC, Hyderabad - 1997 (89) E.L.T. 164, the Tribunal held that the duty free import entitlement are not to be proved again by the exporter or the transferee of license once advance license is granted and vide Commissioner v. Jayant R. Patel - 2003 (155) E.L.T. A68 (S.C.), the Revenues appeal against said judgment was dismissed. In CC, Chennai v. Salem Stainless Steel - 2001 (131) E.L.T. 30 (Mad.), the Honble Madras High Court held that nexus need not be established because the question of nexus would arise only when obligation of the exporter exists and the petitioner as a purchaser of the licenses after discharge of the obligation of export is not required to establish the nexus. The Honble Supreme Court in the matter CC (Imports), Mumbai v. Hico Enterprises - 2008 (228) E.L.T. 161 (S.C.) held that the Customs Department cannot compel the appellant-importer who are the transferee to once again prove that the export obligation has been fulfilled by the original license holder in accordance with the notification.
With this clear exposition, it is emphatically clear that in case of transferable license the nexus between the imported material and export product is not required to be proved afresh by the transferee/importer, once the imported material is otherwise covered by the advance license. In view of this authoritative judicial pronouncement, the department cannot now loosely interpret the provisions under scheme by reading several contrasting instructions issued from time to time in Notification as 4/93 4-3-1993, 1/94 dated 5-1-94, 34/94 12-12-94, 11/95 dated 15-2-1995 and thereafter superseded by 36/97-Cus., dated 16-9-1997, in a manner out of the context or contrary to these authoritative judicial pronouncement, only to deny the exemption benefit granted by the license. Merely because in the instant case, licenses are not transferable, it does not mean that the customs authorities are permitted to go beyond the license to deny exemption benefits. In the instant case, the specifications of the goods imported are squarely covered by the advance license issued by the licensing authority. The appellant has thus established a nexus as envisaged by the advance licensing scheme. We do not find any cogent reason to charter a different course in the instant case. Apart from the DGFTs Circular 72/2008 and CBECs Circular 46/2007-Cus, relevant portion of which is extracted above, which have been according to us rightly relied upon by the appellants, we note that it is settled law that when the import is against the transferred DFIA (Licence) it is not necessary to establish that the material imported was actually used in the export product unless the resultant product figures in the sensitive list and the theory of broad nexus being settled by Apex Court.
13. Regarding the Public Notice no. 35 dated 30.10.2013, it is seen that it seeks to enlarge the scope of Notification no.31 (RE-2013)/2009-14 dated 01.08.2013 amending the Foreign Trade Policy with effect from 01.08.2013, by insertion of para 4.1.15 in FTP, and amending para 4.2.3 by adding phrase 4.1.14 and 4.1.15 in place of and 4.1.14 . In Union of India vs Asian Food Industries, 2006 (204) E.L.T. 8 (S.C.), the Honble Supreme Court was pleased to hold as follows-
48.?... Prohibition promulgated by a statutory order in terms of Section 5 read with the relevant provisions of the policy decision in the light of sub-section (2) of Section 3 of the 1992 Act can only have a prospective effect. By reason of a policy, a vested or accrued right cannot be taken away. Such a right, therefore, cannot a fortiori be taken away by an amendment thereof. Further, in Soubhik Exports Ltd, 2007 (214) E.L.T. 334 (Cal.) the Honble High Court also on the same lines held that-
19.?Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 does not authorize the Central Government to amend the Export and Import Policy with retrospective effect In exercise of the powers conferred under section 5 of the Foreign Trade (Development and Regulation) Act, 1992, the policy can be amended however any oppressive amendment to the Policy is applicable only prospectively, as repeatedly held by Courts that the Government has no powers under the section 5 of the FT (D&R) Act, to amend the policy retrospectively. In our view, even in the context of Public Notice, the ratio laid down by the Hon'ble High Courts in the case of Narendra Udeshi (supra) and Sandur Micro Circuits Ltd (supra) will apply in full force. When we are faced with a situation of choosing between binding precedents of higher judicial fora needs to be given precedence and followed.
However, as against the said binding precedents, the Public Notice no. 35 dated 31.10.2013 seeks to apply the Notification no. 31 dated 1.8.2013 retrospectively, to make the conditions applicable, even to the licenses issued prior to the amendment. We are bound by these binding precedents and we cannot ignore them to deny exemption to item covered under the DFIA issued prior to amendment.
14 We also find support for the above view from the decision of the Honourable Bombay High Court in the case of A.V. Industries Versus Union of India, 2005 (187) E.L.T. 9 (Bom.), which inter alia held that, When import is in accordance with import licence issued to petitioner, department cannot take shelter under import policy and purport to take action against importer.
15. Moreover, Para 4.2.2(b) of Foreign Trade Policy stipulates that DFIA shall be issued in accordance with Policy and procedure in force on date of issue of Authorisation. We are therefore not impressed by the submission of the Revenue that the position as prevailing on the date of clearance would govern imports under valid licence. The Appellant, who are transferee, cannot be compelled to establish that wheat gluten was actually used in the manufacture of the biscuits which have been exported against the DFIA. The provisions of Notification No. 31 dated 1.8.2013 (as amended) will not be applicable to such DFIA issued on 30.05.2012 i.e. issued prior to amendment. Consequentially any policy circular or public notice, if seeks to deny the exemption which is otherwise available in the instant imports, will also have no applicability for the same reason. In Commissioner v. Global Exim, 2010(259)A 139 (Bombay High Court), it was observed that-
4.?According to the Revenue, a co-relation of technical characteristics, quality and specification is required to be established in respect of bearings sought to be imported that the bearings were actually used in the resultant product.
5.?The Tribunal did not agree with the submissions made by the Revenue which were pressed into service by Revenue before the Tribunal and rejected them making following observations :
Having allowed export of motors with input specifications as bearings upto 50 mm bore, it may not be appropriate for the customs authorities to insist on technical specifications at the time of import of bearings. Further we also find that specifications provided in the DFIA authorisation have to be considered as sufficient for the customs purposes since the specifications are based on goods exported under a shipping bill. Therefore the responsibility to ensure that exporter gives a proper declaration while making exports in the shipping bill lies on both customs as well as DGFT authorities and having missed the bus at the time of export, it may not be correct to insist on specifications from a transferee of DIFA. Further we also take note of the fact that DGFT is supposed to ensure that all the requirements have been fulfilled before allowing transferability.
6.?The above findings recorded by the Tribunal is based on the documentary evidence. Even during the course of hearing, the learned counsel appearing for the Revenue was unable to point out from any of the documents available on record that the import was not in accordance with the licence conditions or the specifications provided therein. The view taken by the Tribunal is in accordance with the law laid down by this Court in the case of A.V. Industries v. Union of India, 2005 (187) E.L.T. 9 (Bom.) to which one of us (V.C. Daga, J.) is party. The Appeal is therefore dismissed for want of substantial question of law with no order as to costs. The fact situation in the instant case is also similar. Exemption under DFIA under Notification No. 98/2009-Cus.dated 11.9.2009 would thus be available.
16. In view of the foregoing findings and authentative judicial pronouncements, the appeal is allowed with consequential relief. The Respondent is directed to assess the Bill of Entry as per directions recorded hereinabove and within seven days.
(Pronounced in Court on 01.05.2014)
(H.K. Thakur) (M.V. Ravindran)
Member (Technical) Member (Judicial)
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