TMI Blog2017 (9) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... f the conditions of the DFIA and the N/N. 98/2009 allowing the duty free import is applicable - In the present case it is an admitted fact that the DFIA Licence bearing endorsement of transfer was issued prior to the issuance of the Circular dated 31st January 2011 and hence, the N/N. 98/2009 dated 11th September 2009 was applicable in the case of the import of lactose. The CESTAT upon considering the facts of the present case is justified in arriving at the finding that the change in Policy would not be applicable to the licence issued prior thereto and hence the Respondents are entitled to the benefit of N/N. 98/2009 – CUS, in terms of the DFIA present to the Customs. Appeal dismissed - decided against appellant. - Customs Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Director General of Foreign Trade (for short DGFT ) which clarified that import of Lactose/Mannitol Sodium Saccharine and other artificial sweetening agent is not allowed under SION E5 input against No.2, i.e. sugar. The Respondents justified their claim for duty free clearance against the DFIA. The Respondents took the plea before the Adjudicating Authority that the licence had been issued prior to the said circular being issued and hence was inapplicable in the case of the Respondents. The Respondents requested for release of the imported goods by claiming the benefit of Notification No.98/2009. The Respondents vide their letter dated 1st May 2013 waived issuance of show cause notice and requested for personal hearing in the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents being aggrieved by the two orders dated 10th May 2013, preferred two appeals before the Commissioner of Customs (Appeals). The Commissioner of Customs (Appeals) vide common order in Appeal dated 11th May 2013, rejected the Appeals filed by the Respondents. The Respondents being aggrieved by the order, preferred Appeals before CESTAT. The CESTAT by the impugned order dated 15th June 2015 held that the Circular dated 31th January 2011 was not applicable and placed its reliance upon the judgment of the Madras High Court in the case of Hoewitzer Organics Chemical Ltd Organic Chemical Co. Vs. D.G.F.T., New Delhi reported in 2013 (294) E.L.T. 7 (Mad.) which held that the Policy Circular dated 31st January 2011 does not apply to a valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the date on which the licence was issued. In the present case the licence was transferred on 18th February 2011 i.e. after the change in Policy by issuance of Circular dated 31st January 2011. Hence, the judgment of the Madras High Court would not be applicable to the facts of the present case. Mr. Jetly has contended that the change in Policy was known to the Respondents at the time when they had imported the input viz lactose and claimed the import to be duty free. The Respondents are not eligible to import lactose against DFIA according to the changed policy as lactose was admittedly not used as an ingredient in the export products. Mr. Jetly has accordingly submitted that the impugned order of CESTAT be set aside as it has erroneousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the goods covered by the licence as described in the relevant import Trade Control Policy Book, or any amendment thereof made upto and including the date of issue of the licence, unless otherwise specified. This term itself inidicates that the relevant date for grant of Advance Licence is the date of issue of licence and the licence was only subject to the conditions relating to the goods covered by the licence or amendment thereof made upto and including the date of issue of the licence unless otherwise specified. Therefore, it cannot be said that even though the Petitioners have complied with their obligation of export, when the Petitioners asked for endorsement of transferability on the basis of complying with the conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a vested right accrues to an applicant for issuance of advance licence on the basis of the norm obtaining on the date of application is unacceptable. The Scheme and the context militate against the contention. The fact that the policy is statutory in nature (delegated legislation) has no relevance on the question at issue. It would be wrong to equate the filling of an application for advance licence with the filing of a suit where it is held that appeal being a substantive right, the right of appeal inhering in the party on the date of filing of the suit cannot be taken away by a subsequent change in law. 5. Mr. Shah has therefore submitted that the impugned order is justified in relying upon the Madras High Court judgment in the Hoe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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