TMI Blog2015 (9) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... licensing authority, nexus between import goods use in export goods, was not required to be established afresh by transferee – Decided against Revenue. - Appeal No. : C/10246/2015, (C/Others/10269/2015, C/EH/10257/2015) - ORDER No. A/10711 / 2015 - Dated:- 9-4-2015 - Mr. P.K. Das and Mr. H.K. Thakur, JJ. For The Appellant : Shri K Shivkumar, Authorised Representative. For The Respondent : Shri H Modh, Advocte. Per : Mr.P.K. Das, The relevant facts of the case, in brief, are that the respondent filed Bill of Entry No 6920788 dated 25.9.2014 for clearance of Phosphoric Acid 85% technical grade claimed duty free clearance against DFIA in terms of Notification No 98/2009-cus (supra). DIFA was originally issued to M/s Piramal Glass Ltd. After completion of the export by the exporter, DIFA was transferred to the respondent by the Licensing Authority for duty free import of goods. The Assessing Officer denied the benefit of exemption notification on the ground that the exporter did not provide the actual quantity of Phosphoric Acid used in the export goods. It is observed that as per DGFT notification No 31 dated 1.8.2013 read with Public Notice No 35 dated 30.10.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No 31 dtd 1.8.2013 was not available at the time of issue of DFIA on 17.10.2012 and therefore the restriction would not be applicable as held by the Tribunal in the case of Uni Colloids Impex Pvt Ltd (supra). It is noted that the exemption notification No 98/2009-CUS was not amended to restrict the import as per DGFT Notification No 31. So, it is not necessary to establish the utilisation of imported goods in the resultant product. He relied upon following case laws : a) CC, Good Luck Industries - 2000.120.ELT.A66 (SC) b) CC, Alfa Exim - 2000-120.ELT.A195 (SC) c) CC, Salem Stainless Steel - 2001-131.ELT.39 (Mad) He further submits that the DGFT Notification No. 90 dtd 21.8.2014 would be effective prospectively and not applicable in the present case as DFIA was issued on 17.10.2012. The impugned order passed by the Commissioner (Appeals) is correct, legal and proper. 4. After hearing both the sides and on perusal of records, we find that DFIA was originally issued to the exporters viz., M/s Piramal Glass Ltd and after fulfilment of export obligation, the same was transferred to the Respondent, duly endorsed by the Licensing Authority. The Adjudicating Authority dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GFT, Cosmos cannot go beyond the scope of the license. The case cited by the appellant in the case of Arkema Catalysts India Pvt Ltd vs Union of India - 2012.276.ELT/206 (Bom) and in the matter of Hindustan Lever Ltd vs Commissioner of Customs (EP), Mumbai are relevant in this regard. Once the licence is transferred then the transferee importer is permitted to import duty free goods as per the description in the DFIA. The condition of Notification No 31 and 90 cannot be applied retrospectively to DFIA already issued and operate under the policy prevailing at the time of issue of DFIA. 6. We find that this issue is squarely covered in favour of the respondent as per the decision of the Tribunal in the case of Uni Colloids Impex Pvt Ltd. The relevant portion of the decision of the Tribunal in the case of Unio Colloids Impex Pvt Ltd (supra) is reproduced below : In Aditya Birla Nuvo Ltd. v. CC - 2010 (249) E.L.T. 273 (Tri. - Bang.), while relying on various precedent decisions of higher judicial foras, this Tribunal held as under - 8.6 We now take up next issue framed by us i.e., issue (g) for discussions. (g) Whether the appellant has failed to establish nexus as en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, 12-12-94, 11/95, dated 15-2-1995 and thereafter superseded by 36/97-Cus., dated 16-9-1997, in a manner out of the context or contrary to these authoritative judicial pronouncement, only to deny the exemption benefit granted by the license. Merely because in the instant case, licenses are not transferable, it does not mean that the customs authorities are permitted to go beyond the license to deny exemption benefits. In the instant case, the specifications of the goods imported are squarely covered by the advance license issued by the licensing authority. The appellant has thus established a nexus as envisaged by the advance licensing scheme. We do not find any cogent reason to charter a different course in the instant case. Apart from the DGFT s Circular 72/2008 and C.B.E. C. s Circular 46/2007-Cus., relevant portion of which is extracted above, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. Even during the course of hearing, the learned counsel appearing for the Revenue was unable to point out from any of the- documents available on record that the import was not in accordance with the licence conditions or the specifications provided therein. The view taken by the Tribunal is in accordance with the law laid down by this Court in the case of A.V. Industries v. Union of India - 2005 (187) E.L.T. 9 (Bom.) to which one of us (V.C. Daga, J.) is party. The Appeal is therefore dismissed for want of substantial question of law with no order as to costs. 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. 7. The other aspect of this case is that DGFT Notification No 31dated 1.8.2013 deals with the case of import either (a) a generic import or (b) alternative imports. Public Notice No 35 dated 30.10.2013 have enlarged the scope of Notification No 31 dated 1.8.2013. Notification No 90 dated 2.8.2014 provides declaration of actually used quantify of inputs in the export goods. We find that in the present case, Phosphoric Acid is a specific entry mentioned in the DI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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