Home Case Index All Cases Customs Customs + AT Customs - 2020 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (9) TMI 949 - AT - CustomsLegality of import of ‘wheat gluten amygluten 160’ - production of ‘duty-free import authorization (DFIA)’ licenses, permitting import of ‘flour’ for the manufacture of ‘biscuits’ - N/N. 40/2006-Cus dated 1st May 2006 or of notification no. 98/2009-Cus dated 11th September 2009 - period between November 2011 and September 2012 - HELD THAT:- With the removal of starch from dough made of ‘flour’, the resultant product is wheat gluten. Hard ‘wheat flour’ is hydrated to activate the gluten within it, processed for removal of the inherent starch by washing which, after dehydrating, is then powdered. Thus the composition of wheat, in a depleted form, in the flour does not appear, to us, to be an alteration of the essence of the product. With the threshold eligibility thus settled, the allegation pertaining to ineligibility arising from import by an entity other than ‘actual user’ and of ineligibility arising from utilization of a different ingredient in the exports effected by the original license holder remain to be evaluated. The ‘duty-free import authorizations’ procured by the appellant-importer had been made transferable in accordance with the provisions of the Foreign Trade Policy and there is no whiff of allegation that the said endorsements had been procured unlawfully. The prescription of ‘actual user’ condition in the Foreign Trade Policy, and reflected in the corresponding notification issued under section 25 of Customs Act, 1962, cannot be said to be extended to transferees of such licences unless particularly specified, either in the policy prescriptions or in the notification, for that would be tantamount to imposing a condition that was not intended by the Central Government. Neither the adjudicating authority nor Learned Authorised Representative have been able to establish that ‘post-export, endorsed for transfer’ license continued to be entailed with such actual user condition. In any case, the ultimate usage of such goods by an actual user renders the logic of Revenue to be unacceptable. There is no evidence on record that the appellants were aware of the composition of the exported goods. Hence, the appellant cannot be expected to conform to such imports as they are not cognizant of. From the available records and submissions made, we are unable to conclude if any of the inputs permitted for import to enable manufacture of biscuits are enumerated among the goods specified for conformity in the Handbook of Procedures. On the inadequacy of credible evidence of the ingredients used in the exported goods, the essential nature of the impugned goods, the apparent conformity with the conditions of the Foreign Trade Policy and the precedent decision in the dispute of the appellant herein - Appeal allowed - decided in favor of appellant.
|