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Usms Saffron Co. Inc. Versus Commissioner of Customs (ACC & Export) Mumbai

2015 (11) TMI 820 - CESTAT MUMBAI

Denial of benefit of DFIA notification - Provisional clearance of goods - Invocation of bank guarantee - Held that:- License being freely transferable, no actual user condition can be imposed on the transferee who has purchased the License from the open market. The importer therefore is not required to establish the actual user condition in terms of DGFT Policy Circular 50/2008 and CBEC Circular No. 46/2007. We note that in similar cases of same goods, i.e. Saffron, the Orders of Commissioner Ap .....

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ecision taken by Committee of Commissioners. - department cannot now impose strict conditions for provisional release when there are Orders of the Tribunal and the Commissioner (Appeals) in favour of the appellant. Therefore the Order imposing 100% Bank Guarantee is not sustainable. - adjudicating authority does not have the authority to impose such conditions for provisional release. This exercise of the power is very arbitrary and suffers from lack of reasonableness in view of the judicial pro .....

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ing the Order of DC Customs directing the appellant to furnish PD Bond of 100% value of the goods and Bank Guarantee of 100% of the duty foregone for clearance of their consignment provisionally. 2. The facts are that an import consignment of 25 Kgs. of Saffron was sought to be Ex Bonded duty free under Notification No. 98/2009-Cus. dt. 11-09-2009 vide Bill of Entry No. 2135531 dated 15.05.2013 as Food Flavours under a DFIA License 0310630718 dated 11.05.2011 transferred in appellant's name. .....

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ellant the liberty to produce an appropriate license for release of the goods, before the Customs. The appellant thereafter produced a fresh DFIA License No. 0310682293 dated 15.05.2013 transferred in their name. The said DFIA was issued against export of Biscuits issued as per SION E-5 for the export of Biscuits under the description of Food Flavour as mentioned in the DFIA. In this license there was no actual user condition. However the DC vide letter dated 06.07.2015 directed the appellant to .....

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been filed against the same. Further he submitted that since the fresh DFIA did not have any actual user condition in the DFIA or the SION, there was no ground for ordering provisional assessment on submission of bank guarantee 100% of the duty foregone. Further in their own case, which was identical in facts, CESTAT vide order dated 1.5.2015 set aside the duty demand and penalty relying on the judgment of Mumbai High Court in the case of A.V. Industries 2005 (187) ELT (BOM). 4.1 The next conte .....

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submission of a Bank Guarantee for 20% of the duty leviable and bank Guarantee of 5% to cover redemption fine and personal penalty and directed the Customs officers at Mumbai and Nava Sheva to release the goods within three days of the production of the Tribunal's order by excepting the DFIA license. 5. The ld. AR appearing on behalf of Revenue reiterated the findings of the lower authorities. He submitted that the benefit of duty free concession cannot be given as SION clearly restricts th .....

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ad given detailed findings on this very issue on identical set of facts in Order no. A/1134-1136/15/CB dated 01.05.2015 and proceeded to set aside the duty demand and penalty imposed sought to be demanded by denying the benefit of Notification No. 98/2009. CESTAT relied upon the judgement of Bombay High Court in the matter of A.V. Industries (supra) which held that wherein the import is in accordance with the import license issued to the petitioner, the respondents cannot take shelter under the .....

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rtain items. But no condition was imposed in respect of saffron as food flavour . 6.1 The appellant's contention is that duty exemption criterion is only the description (and quantity) mentioned in the SION norms which is described in the DFIA as ITC heading 0900000. But even ITC (HS) Code is not a criterion to get the benefit under the FTP and Customs provisions as long as the item imported falls under the description of goods mentioned in the DFIA. We accept this contention as the goods me .....

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uired to establish the actual user condition in terms of DGFT Policy Circular 50/2008 and CBEC Circular No. 46/2007. We note that in similar cases of same goods, i.e. Saffron, the Orders of Commissioner Appeals allowing such import at Mumbai and Nava Sheva were accepted by the Department and the imports under relevant B/Es such B/E No 5551749 field at ACC Mumbai bear the remarks Assessed as per Commissioner (Appeal) order accepted by Committee of Commissioner of Customs vide F.No. S/3-Misc-18/20 .....

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