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Showing contexts for: dfia in Usms Saffron Co. Inc vs Commissioner Of Customs (Acc & Export) ... on 30 September, 2015Matching Fragments
This appeal arises from Order-in-Appeal No. MUM-CUSTM-AXP-APP/368/15-16 dated 09.09.2015 passed by the Commissioner of Customs (Appeal), Mumbai III confirming the Order of DC Customs directing the appellant to furnish PD Bond of 100% value of the goods and Bank Guarantee of 100% of the duty foregone for clearance of their consignment provisionally.
2. The facts are that an import consignment of 25 Kgs. of Saffron was sought to be Ex Bonded duty free under Notification No. 98/2009-Cus. dt. 11-09-2009 vide Bill of Entry No. 2135531 dated 15.05.2013 as Food Flavours under a DFIA License 0310630718 dated 11.05.2011 transferred in appellants name. This DFIA was issued against SION norm E-1 for the export of assorted confectionary products. The benefit of DFIA notification was denied by adjudicating authority vide Order No. CAO/DC/882/SKM/2013/ADJ/ACC dated 27.05.2013 on the basis that the import of saffron as food flavour is permissible only if the same is utilized in the export product which was not established. In appeal, the Commissioner (Appeals) rejected their case. On appeal before it, CESTAT vide order dated 20.01.2014 allowed appellant the liberty to produce an appropriate license for release of the goods, before the Customs. The appellant thereafter produced a fresh DFIA License No. 0310682293 dated 15.05.2013 transferred in their name. The said DFIA was issued against export of Biscuits issued as per SION E-5 for the export of Biscuits under the description of Food Flavour as mentioned in the DFIA. In this license there was no actual user condition. However the DC vide letter dated 06.07.2015 directed the appellant to furnish 100% PD Bond for the value of the goods and 100% Bank Guarantee for the duty foregone for the release of the goods on provisional basis. The appellant filed appeal before the Commissioner (Appeals) who rejected the same vide Order dated 09.09.2015. The appellant are in appeal before us against this order.
3. Heard both sides and considered the submissions.
4. The opening contention of the learned counsel is that the CESTAT order dated 20.1.2014 being a remand order, no appeal could have been filed against the same. Further he submitted that since the fresh DFIA did not have any actual user condition in the DFIA or the SION, there was no ground for ordering provisional assessment on submission of bank guarantee 100% of the duty foregone. Further in their own case, which was identical in facts, CESTAT vide order dated 1.5.2015 set aside the duty demand and penalty relying on the judgment of Mumbai High Court in the case of A. V. Industries 2005 (187) ELT (BOM).
4.1 The next contention of the learned counsel is that the Commissioner (appeals) under order-in-appeal dated 27.10.2010 had allowed the import of saffron under the description of food flavour against the export of biscuits under the DFIA License. And the said order has been accepted by the Committee of Commissioners.
4.2 The third contention is that the Tribunal in a similar case vide order number A/11572/2014 dated 03.09. 2014 set aside the decision of Commissioner Ahmedabad to release the goods provisionally on submission of a Bank Guarantee for 20% of the duty leviable and Bank Guarantee of 5% to cover redemption fine and personal penalty and directed the Customs officers at Mumbai and Nava Sheva to release the goods within three days of the production of the Tribunals order by excepting the DFIA license.
6.1. The appellants contention is that duty exemption criterion is only the description (and quantity) mentioned in the SION norms which is described in the DFIA as ITC heading 0900000. But even ITC(HS) Code is not a criterion to get the benefit under the FTP and Customs provisions as long as the item imported falls under the description of goods mentioned in the DFIA. We accept this contention as the goods mentioned in the DFIA are food flavour. It is therefore undisputed that the appellant is entitled to import saffron as a food flavour irrespective of ITC (HS) heading mentioned in the DFIA.