TMI Blog2004 (10) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... record, the test report given by CRCL. Accordingly, we hold that the impugned polyester fabric is classifiable under sub-heading 5407 69 00 of the Customs Tariff. Clearance of the imported goods against DFRCs licences - Once the licence has been issued by the DGFT on the basis of export of goods, it is not open to the Revenue to disallow the clearance of imported goods against these licences on the ground that these licences do not contain some further details. As long as the licence has been validly issued by the DGFT after ascertaining the export of goods, the Customs have to allow the clearance of the specified goods against these licences. As observed by us earlier the Revenue has not denied that goods imported are polyester fabrics GSM of which is 200 +/- 10%. We also observe that the Board in Circular No. 33/2000-Cus., dated 2-5-2000 has explained the salient features of DFRCs licence. One of the salient feature is that DFRCs licence shall permit import of inputs having same quality, technical characteristics and specifications which have been used in the export product and which are specified in the Shipping Bills. In the present matter, the export products were of polyeste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee samples when they were drawn from the same consignment; that on the other hand, the supplier had given the test Certificate wherein it has been clearly certified that the fabrics contained non-texturised yarn; that there is no allegation in the show cause notice that Certificates given by the suppliers are incorrect; that the suppliers who had sent the consignment is the best person to know the composition of his product; that thus their declarations that the goods are made of non-texturised yarn is perfectly valid and should be accepted. 3. The learned Advocate further submitted that there was no intentional mis-classification of the goods by the Appellants; that they had earlier imported polyester fabrics and the same was assessed as containing non-texturised yarn; that the present Bills of Entry were also filed on the same lines; that the polyester fabrics from its look cannot be distinguished and the nature of constituent yarn could not be ascertained as such; that they had no way to know that the goods have yarn which is less than 85% non-texturised yarn; that it was only on testing conducted by the laboratories that the same could be revealed; that even the results of test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of such inputs; that the Commissioner has relied on the language of Notification No. 46/02 and Board's Circular. The learned Advocate submitted that in the present matters, the DFRCs produced by the appellants refer to 100% polyester fabrics (GSM 200 + - 10%); that thus the description of the goods and its quality has been clearly mentioned in DFRCs; that when the Customs Authorities and the licensing Authority are treating the description of the exported items as sufficient for allowing the import of a particular item, it is not open to the Adjudicating Authority to embark upon unnecessary deficiencies; that it is not the case of the Department that the DFRCs have not been issued as per the relevant Import-Export Policy and therefore, it is not open to the Department not to allow the import of the goods; that since the DFRCs were issued as per the provision of law and the same were legally transferred to the Appellants and they had imported goods as per description mentioned therein, the impugned Order is wholly untenable in the eye of law; that it is settled law that in respect of licensing matters, DGFT is the final Authority and if they had issued a DFRC in a particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal filed by M/s. Raj Exports as reported in 2002 (141) E.L.T. A282 (S.C.). He also relied upon the decision in the case of Rico Gems Corporation v. Chief Controller of Imports and Exports, 1992 (58) E.L.T. 390 (Bombay) wherein the Bombay High Court has held that an absolute and inviolable right cannot be claimed by the transferee in view of the positive provisions contained in the licence itself to the effect that the licence is granted without prejudice to the application of any other prohibition or regulation; that it has also been held by the Bombay High Court that transferee steps into the shoes of the transferor. He contended that in the present matters the DFRC has been issued as per Notification No. 46/2002 and the fabrics is covered in the sensitive list; that as per the Board's Circular No. 33/2000-Cus., dated 2-5-2000, the exporter operating under DFRC is required to give a declaration on the Export Promotion copy of the shipping bill indicating GSM No. and SION, product group of the export product; that EP copy of the shipping bill should also contain the declaration regarding the quality, technical characteristics of the inputs used in the export products; that DFRC li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplier. The perusal of the said Test Certificate reveals that the supplier has only stated that the goods are non-texturised fabrics without indicating the contents of the texturised polyester filament. In view of this, this Certificate is of no importance. On the other hand, the Revenue has brought on record, the test report given by CRCL. Accordingly, we hold that the impugned polyester fabric is classifiable under sub-heading 5407 69 00 of the Customs Tariff. 8. We, however, agree with the learned Advocate that the impugned goods are not liable for confiscation. It has not been denied by the Revenue that the appellants have made the declaration on the Bills of Entry on the basis of documents received by them from their foreign suppliers. The test report of the foreign supplier is dated 9-8-2003 which clearly mentions that the goods are non-texturised fabrics. They have also claimed that a similar consignment imported by them from the same supplier had earlier been cleared as non-texturised polyester fabrics which gave them the bona fide belief that the present consignment would also be of non-texturised variety. In similar situations, the Supreme Court has held in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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