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2020 (2) TMI 1262 - AT - CustomsDuty Free Import Authorisation (DFIA) scheme - seeking clearance of Cocoa Powder as against Maida, Atta and Flour - export of Biscuits - whether entries in SION or Exim Policy are to be understood in common man’s understanding/trade parlance or on the basis of Technical literature? - right to reopen the issue once the same was settled by the Apex Court - applicability of principles of ‘ejusdem generis’ or ‘Noscitur a socciis’ - extended period of limitation. HELD THAT:- If Flour is placed along with Maida/Atta it cannot be taken to include ‘Cocoa Powder’ for the reason that ‘Cocoa Powder’ is a technically a Flour of beans. The issue is not so complicated and isolated that one requires to refer to Technical Literature to understand the terms. Technical Literature, being in its place, is no alternative to common sense and common man’s understanding or for that matter Trade parlance. It’s not the case of the importers that a common man on the street understands that ‘Cocoa Powder’ and ‘Atta/ Maida/Flour’ to be one and the same. No common man would go to a Flour mill to purchase ‘Cocoa Powder’. Therefore, no amount of painful elaboration based on too technical literature would replace common man’s understanding particularly when the issue concerns very mundane thing like ‘Atta/ Maida/Flour’ and certainly not Rocket Science. Whether the principles of ‘ejusdem generis’ or ‘Noscitur a socciis’are applicable? - HELD THAT:- The word ‘Flour’ has been used in conjunction with ‘Atta/Maida’ and therefore, it would take the meaning of the words used along with it. One need not stretch the imagination and mental faculties to adduce the meaning of ‘Flour’ to ‘Cocoa powder’. In view of the same and going by common man’s understanding as enunciated by the various judgments of Higher Courts, we are inclined to accept the contention of the Revenue in this regard. We reject the contention of the importers that ‘Cocoa Powder’ can be imported as a replacement for ‘Atta/ Maida/Flour’. DGFT, vide Public Notice No. 93 (RE-2010)/2009-14 dated 1/2/2012, permitted duty free import of 09gm of ‘Cocoa Powder’ as additive/ingredient against export of 1kg of Biscuits. This means that, prior to 1/12/2012, import of Cocoa Powder as an input item was not permissible against export of Biscuits under DFIAs. In the present case, the Department has obtained required clarification from DGFT authorities who clarified that the importers are not allowed to import ‘Cocoa Powder’ under the DFIAs issued against the item description ‘Maida/Atta/Flour’. Reopening of assessments - HELD THAT:- The appellants have argued that in most of the cases, department has assessed the import consignments on the basis of Tribunal’s decision in the case of S. Kushalchand& Co and therefore, it is not open for the customs to reopen the assessments. There is no estoppel in taxation matters and Revenue can set right a wrong that has crept in to the system in the past. The benefit of Notifications No 40/2006-Cus dated 1/5/2006 and No 98/2009-Cus dated 11/9/2009is not automatic. It is subject to fulfilment of various conditions. Both notifications prescribe that the description, value and quantity of materials imported are covered by the said authorisation and the said authorisation is produced before the proper officers of customs at the time of clearance for debit”. Therefore, the Customs Officers who are administering the exemption are within their right to revise the practice despite a precedent. ‘Cocoa Powder’ cannot be equated with Flour/Atta/Maida and thus cannot be imported against the DFIAs issued against export of Biscuits before the issuance of Notification, No 93 (RE-2010)/2009-14 dated 1/2/2012 by DGFT, permitting import of 09gm of ‘Cocoa Powder’ as additive/ingredient against export of 1kg of Biscuits - the Notification is prospective only. Extended period of limitation - HELD THAT:- No elements of suppression of fact, misstatement, misrepresentation etc which necessitate invocation of extended period are present in the circumstances of the cases on the part of various importers. Therefore, though it was open to the department to revise the assessments, the same should have been done in the normal period. It is not free for the department to invoke extended period - the appeals made by Revenue survive, though survive on merits, demands being hit by limitation; appeals are liable to be rejected on the issue of limitation. Thus, the importers are not eligible to import ‘Cocoa Powder’ against the items ‘Flour/ Atta/Maida’. However, Revenue appeals are liable to be rejected on the grounds of limitation - appeal dismissed - decided against Revenue.
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