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2015 (3) TMI 1213 - AT - CustomsDenial of benefit of notification No. 98/2009-Cus dt. 11.9.2009 - demand of duty - imposition of penalty under section 114A and under Section 114AA of the Customs Act, 1962 - import of Saffron - assorted confectionary and biscuits - DFIA license - actual user condition - whether the import of Saffron under the subject DFIAs was eligible for exemption? - whether the DFIAs on the basis of which exemption was availed were subject to the condition that : (i) In respect of import against export of assorted confectionery, the quantity of Saffron actually used in the export product is mentioned in the shipping bills. (ii) The import of Saffron against the export of Biscuits is subject to the actual user condition with accountability of actual use on the on the export side? Held that: - the DFIAs have been issued and made transferable without putting any of the conditions on the face of the DFIAs. There is some merit in the contention that the duty free import is permissible on the basis of the DFIAs presented to the Customs when there is no allegation that the DFIAs were obtained on account of fraud committed by the importer. The importer is not responsible for the transfer conditions imposed by the DGFT on the licenses when they are transferred to the importers by the original license holder. If at all, the actual user condition on the body of the DFIA was mandatory for the licensing authority. No evidence whatsoever, of fraud committed by the importer has been brought on record. The assessing authorities also verified the license at the time of Customs clearance and found nothing wrong with the licenses - duty not demandable from the appellant and the benefit of notification No. 98/2009 admissible - the confiscation as well as penalties not sustainable. Imposition of penalty on CHA under Sections 112(b) and Section 114AA of the Customs Act, 1962 - Held that: - the job of the clearing agent is to prepare documents such as bill of entry properly and file the same along with supporting documents such as licenses wherever required. The document namely the DFIA presented to the Customs is not a document prepared by the CHA. This document is a license issued by the DGFT. CHA cannot be faulted for submitting documents issued by DGFT. The Customs also assessed the goods as per the DFIA issued by the DGFT. Therefore the CHA cannot be held responsible for mistakes, if any, in the document i.e. DFIA issued by the DGFT. No merit in holding the CHA liable to penalty under Section 112(b) of the Customs Act, 1962 because the CHA cannot be said to have dealt with the goods which he knows are liable to confiscation. Even the penalty under Section 114AA is not imposable on the CHA because the CHA has not made any false statement or produced any false document before the Customs. The CHA has merely presented the license which is issued by DGFT - imposition of penalty on CHA withheld. Appeal allowed - decided against Revenue.
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