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2015 (11) TMI 820 - CESTAT MUMBAI

2015 (11) TMI 820 - CESTAT MUMBAI - 2016 (331) E.L.T. 155 (Tri. - 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 .....

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s binding on officers and any contrary decision amounts to defiance of the decision 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 a .....

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9.09.2015 passed by the Commissioner of Customs (Appeal), Mumbai III confirming 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 D .....

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ir case. On appeal before it, CESTAT vide order dated 20.01.2014 allowed appellant 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 cond .....

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the CESTAT order dated 20.1.2014 being a remand order, no appeal could have 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 C .....

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the decision of Commissioner Ahmedabad to release the goods provisionally on 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 .....

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dered the submissions made by both sides. "We find that this Tribunal had 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 lice .....

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to impose any condition at the time of transfer, it did so in respect of certain 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 descripti .....

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urchased 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 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) orde .....

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