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2014 (5) TMI 525 - AT - CustomsEligibility for duty exemption - import of Amygluten 160 (Wheat Gluten) - Held that:- 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. The technical data on record and the communication dated 30.10.2013 from the Ministry of Food processing clearly support the appellant s 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. 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 - Apart from the DGFT’s Circular 72/2008 and CBEC’s Circular 46/2007-Cus, relevant portion of which is extracted, 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 - 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 - Decided in favour of assessee.
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