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2015 (11) TMI 1092 - CESTAT MUMBAI

2015 (11) TMI 1092 - CESTAT MUMBAI - 2015 (328) E.L.T. 141 (Tri. - Mumbai) - Import of Boric Acid - Import without production of import permit - Held that:- Boric Acid is freely importable as per ITC (HS) classification 2810 0020, subject to a restriction of furnishing an import permit issued by the Central Insecticide Board & Registration Committee under the Ministry of Agriculture. The goods are thus not notified as prohibited for imports, but import is restricted - Thus, Central Government vi .....

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Act, 1962. The Ruling of the Division Bench of Hon'ble Kerla High Court in [2015 (11) TMI 1027 - KERALA HIGH COURT], is held disguisable, as the matter before the Hon'ble High Court was with respect to import of boric acid on payment of duty, whereas in the present case, the import is against DFIA. Thus, the impugned order is set aside. - Decided in favour of assessee. - APPEAL NO. C/85169/15 - A/1807/15/SMB - Dated:- 26-6-2015 - SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) For the Petitioner : Shri M .....

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urn obtained transferability endorsement after the completion of export obligation and thereafter transferred the DFIA to the appellant in terms of the provisions of Foreign Trade Policy. The said DFIA inter alia allows Boric Acid as one of the input item required for use in export product without stipulating any further requirement of permit. There is no dispute with regard to the import of Boric Acid either for its eligibility under the DFIA or use for non-insecticidal purpose. 2. The entire d .....

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dated 07.04.2006. Reliance was also placed by the adjudicating authority upon order dated 3.6.2014 of the Division Bench of Kerala High Court in the matter of Union of India Vs. Maliakkal Industrial Enterprise in Writ Appeal no. 617 of 2012. Also order dated 29.7.2009 passed by the Hon ble Kolkata High Court in Writ Petition No. 505 of 2009 filed by Subhas Chandra Agarwal, and another wherein it was held that import permit is required for the import of Boric Acid as per DGFT Notification No. 2 d .....

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appellant for non insecticidal use, prior to the present consignment, have been assessed to duty on provisional basis and allowed to be cleared on furnishing the bond for full amount of duty with a bank guarantee of 20% of the duty amount. 3.2 The practice of allowing clearance on provisional basis has been adopted pursuant to the order passed by the Hon'ble Bombay High Court vide their orders dated 19.03.2010 in the WP No. 1449/2010 filed by the appellant. The petition was filed by the app .....

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bunal vide final order dated 03.12.2010 holding that the importer is not required to obtain any permission from the Ministry of Agriculture for import of boric acid for non insecticidal use. 3.3 The appellant imported another consignment comprising of 100 MTS of Boric acid. The claim for importation, without import permit was again rejected by the assessing authority. The rejected order passed by the Joint Commissioner was challenged before the Commissioner (Appeals). The Commissioner (Appeals), .....

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ittee (CIB & RC). While deciding so the CESTAT also relied upon the decision of the learned single judge of Hon'ble Kerla High Court in the case of M/s Maliakkal Industrial Enterprises, which held that the notification No. 2(RE-2006)/2004-2009 dated 07.04.2006 issued by the DGFT is without the authority of law. 3.5 Against the above background the show-cause notice dated 17.09.2014 was issued to the appellant proposing confiscation of the live consignment (Bill of Entry dated 02.08.2014) .....

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;RC). A penalty of ₹ 14,00,000/- was also imposed on the appellant under Section 112(a) of the Customs Act, 1962 (Act for short). 3.7 On appeal, the learned Commissioner (Appeals) rejected the appeal filed by the appellants vide the impugned Order-in-Appeal dated 07.01.2015 adopting the findings enumerated in the order passed by the Additional Commissioner and maintained the amounts of fine and penalty imposed by the Additional Commissioner. 3.8 The learned Counsel for the appellant urges .....

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the Revenue despite the decision of the Division Bench of the Hon'ble Kerala High Court in the case of Maliakkal Industrial Enterprise (supra). 3.9 It is further urged that the impugned order passed by the learned Commissioner (Appeals) is cryptic and non-speaking. The learned Commissioner (Appeals) has failed to consider by putting heavy reliance on the decision of the Division Bench of the Hon'ble High Court, which was rendered in respect of the imports of Boric Acid on payment of dut .....

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Policy read with the Policy Circular dated 16.3.2009. The said para in the Policy states that import of restricted items shall be allowed in advance authorization/DFIA. The same have been further clarified in the Policy Circular No. 70/08 issued by the DGFT, that once the DFIA is issued for importing the item listed in the DFIA, the same can be imported against the transferred DFIA, without the requirement of Licence/authorization unless otherwise mentioned under the said notification. Thus, ip .....

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licensing formalities by way of restriction through the FTP stand waived. It is further contended that the provisions of Insecticide Act have no jurisdiction to place restrictions on import of any item for non insecticidal use. It is further evident that the restriction placed on the import of boric acid for non insecticidal purposes is a restriction arising through the Policy and not through the Insecticide Act. Otherwise there was no legal necessity for the Central Government to notify the res .....

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time being in force. 3.13 It is further urged that it is a rule of law that while interpreting the scope of a given term (restricted), it is necessary to examine as to how the same term is defined or applied in the said statute. From the description appearing in the ITC(HS) classification of import & export item, it can be seen that the column no. 4 is devoted to describe the precise restrictions. Under the ITC(HS) classification, boric acid has been described as Freely importable under th .....

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Mohd. Omer Vs. Collector of Customs, Calcutta 1983 (13) ELT 1439 (SC) to hold that the boric acid imported without the permit from the CIB&RC is liable to confiscation is mis-placed as import of boric acid is neither prohibited nor restricted. As such, the learned Commissioner (Appeals) is in error in holding that the import of boric acid is liable for confiscation under Section 111(d) of the Act. 3.14 It is further contended that Section 111(d) provides for confiscation of any goods under i .....

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s evident that unless the goods are listed as prohibited either in the FTP or under the Customs Act, there can be no confiscation under the provisions of Section 111(b) of the Act. Only for the fact that the goods are restricted for import, does not authorize for confiscation. 3.15 It is further urged that even assuming for argument sake that there is violation of FTP consequent to failure to comply with the mandate contained in the notification dated 7.4.2006, it amounts to only violation of .....

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t in Sheikh Mohd. Omer case is not applicable. 3.16 It is further urged that Board Circular No. 401/101/2011/Cus-III dated 22.6.2011 regarding import of substances listed in Insecticide Act, for non-insecticidal use Exemption from registration & import permit from CIB&RC clarified that the clearance of imported items listed in Insecticide Act for non-insecticidal use would not be subject to requirement of registration/import permit from CIB&RC. In the facts of this clarification, it .....

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(d) of the Customs Act, 1962 is warranted and relies upon the judgement of the Hon ble Supreme Court in Sheikh Mohd. Omer v. Collector of Customs, Calcutta &Ors, 1983 (13)ELT 1439 (SC), as well as the findings in the impugned order. 5. I have considered the submissions made by both the sides and perused the records. 6. It is seen that Boric Acid is freely importable as per ITC (HS) classification 2810 0020, subject to a restriction of furnishing an import permit issued by the Central Insect .....

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import of restricted items shall be allowed under DFIA. In the instant case, the import of Boric Acid is against DFIA issued by DGFT. No restriction can therefore come in way of allowing import of such restricted item when import is sought against DFIA. 6.3 No separate permit is therefore necessary for the said clearance, once DGFT has considered the eligibility for imports and after being satisfied issued the DFIA permits import of Boric Acid without stipulating any condition, to furnish any fu .....

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