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M/s Unibourne Food Ingredients LLP Versus Commissioner of Customs, Hyderabad

2017 (11) TMI 438 - CESTAT HYDERABAD

Maintainability of appeal - claim of benefit under DFIA scheme - import of Apple Juice Concentrate - Held that: - the appeal is maintainable as per the ratio laid down in the case of Swiber Offshore Construction Pvt. Ltd. Vs. Commissioner of Customs, Kandla [2013 (11) TMI 1232 - CESTAT AHMEDABAD], where it was held that there is no reason to justify rejection of request made by the appellant to the adjudicating authority in light of section 138B of the Act, to summon witnesses for examination an .....

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justify as to how Apple Juice Concentrate would not be covered under the description Relevant Fruit Juice/Pulp/Puree, when the fact that Apple Juice Concentrate can inter alia be used in the manufacturing of export product in DFIA Assorted Confectionary and Biscuits, is not in dispute, and the Ld. Advocate has produced evidence to show that the imported product can be used in manufacturing of various products which includes candies and confectionary applications and pies and bakery goods - Ther .....

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blished in terms of DGFT N/N. 31 dated 01.08.2013. - Fulfillment of conditions of DFIA exemption N/N. 98/2009-Cus dated 11.09.2009 - the said notification provides exemption subject to the condition namely that the description, value and quantity of materials imported are covered by the said authorisation and the said authorisation is produced before the proper officer of customs at the time of clearance of debit - Held that: - in the instant case imported goods described as Apple Juice Conc .....

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ncentrate under the Transferable DFIA presented by it - appeal allowed - decided in favor of appellant. - C/31038/2017-DB - Final Order No. A/31757/ 2017 - Dated:- 6-11-2017 - Mr. M. V. Ravindran, Member ( Judicial ) And Mr. Madhu Mohan Damodhar, Member ( Technical ) Mr. Sujay Kantawala, Adv for the Appellant Mr M. Chandra Bose, A.R. for the Respondent ORDER [ Order Per: M. V. Ravindran ] The Appellant M/s. Unibourne Food Ingredients LLP, (IEC Code No. 0315017601), Mumbai imported 275 Kgs.(Drum) .....

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ant documents raised the following query through EDI system- QUERY RAISED: Vide Notification No. 31/01.08.2013 Para 4.1.15 was inserted wherein it stipulates that inputs actually used in the manufacturing of the export product should only be imported under the DFIA authorisation. Similarly inputs actually imported must be used in the export product. Please submit the shipping bills under which the related products were exported (Biscuits and Assorted Confectionaries) with the relevant consumptio .....

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said DFIA, and inter alia submitted that the appellant is not required to fulfil the condition of Notification No. 31 dated 01.08.2013. The appellant further submitted that the licensing authorities have already verified and examined all the relevant issues and endorsement of transferability was made after satisfying with the said conditions. In any event, the appellant contended that DFIA Notification No. 98/2009-Cus dated 11.09.2009 does not specifyany such condition as stipulated in DGFT Noti .....

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7 addressed to the Principal Commissioner of Customs, Hyderabad Customs Commissionerate, to our query dated 05.09.2017, it is to inform you that the matter has been deliberated upon and it is hereby informed as follows: Since the goods, Apple Juice Concentrate is not figuring in the DFIA License, it appears that the goods are ineligible for duty free import under the DFIA. In view of the perishable nature of the goods, you may either produce a document specifically covering the item sought to be .....

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conveys the decision of the Principal Commissioner of Customs declining DFIA benefits for the imported goods as an adjudicating authority. This decision of the adjudicating authority under the Act, is an appealable order under Section 129 (1) of the Customs Act, 1962 as per the ratio laid down in- a) Sterlite Optical Technologies Vs. Commissioner of Customs (Export), ACC, Mumbai 2008 (226) ELT 0069; b) Swiber Offshore Construction Pvt. Ltd. Vs. Commissioner of Customs, Kandla 2014(301) ELT 119 .....

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able and carry short shelf life and the mandatory pre-deposit is also paid by the appellant in terms of Section 129E of the Customs Act, 1962, the appeal was taken up for disposal with consent of both sides. 8. The Ld. Advocate of the appellant contended that the entire case is squarely covered by the judgement of A.V. Industries Vs. UOI- 2005 (187) ELT 9 (BOM) of the Hon bleBombay High Court, wherein it was held that- 16. However, when the import is in accordance with import license issued to p .....

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tion of the condition was a bona fide error or misconstruction of the import policy by the officers of the department the petitioners cannot be made to suffer. 9. In the instant case, the imported goods are Apple Juice Concentrate which is covered under the description of Relevant Fruit Juice as mentioned in the DFIA. In order to justify the usability of Apple Juice Concentrate in the export product, the advocate of the appellant produced documentary evidence taken from internet website which ev .....

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nputs used in the export product. Further DFIA Notification No. 98/2009-Cus dated 11.09.2009 has no such conditions with respect to the actual usability of input and quantity for availing DFIA benefits. Since the present consignment was sought for duty free clearance under a transferable DFIA issued as per Notification No. 98/2009-Cus dated 11.09.2009, there is no violation of any of the conditions of the said Notification. The Ld. Advocate contended that DFIA is issued under Standard Input-outp .....

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Effect of the Notification nos. 31 dated 01.08.2013, 90 dated 21.08.2014 and Policy Circular No. 3 dated 02.08.2013. Therefore no such condition of actual usability of inputs and quantities can now be imposed on the DFIA. Accordingly, the Ld. Advocate for the appellant submits that the impugned decision deserves to be quashed and set aside by extending DFIA benefits for the present consignment covered under the aforementioned Bill of Entry. 12. In response, the Ld DR submitted that actual usabi .....

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t pursuant to query raised during assessment under the Act, the impugned decision is taken by the Principal Commissioner, and communicated by the Dy. Commissioner. We are satisfied that the appeal is maintainable as per the ratio laid down in the case of Swiber Offshore Construction Pvt. Ltd. Vs. Commissioner of Customs, Kandla 2014 (301) ELT 119 (Tri-Ahd). 15. Now coming to the merits of the case, the issue involved is on a narrow compass. In the instant case, the goods imported are Apple Juice .....

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it Juice/Pulp/Puree , when the fact that Apple Juice Concentrate can inter alia be used in the manufacturing of export product in DFIA Assorted Confectionary and Biscuits , is not in dispute, and the Ld. Advocate has produced evidence to show that the imported product can be used in manufacturing of various products which includes candies and confectionary applications and pies and bakery goods. 16. There is no dispute that the quantity and value of goods Apple Juice Concentrate is within the ma .....

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is made transferable by the licensing authority by an endorsement dated 14.07.2017. With the endorsement of transferability, the DFIA and inputs are made freely transferable in terms of the provision of Para 4.2.6 of the FTP read with para 4.36A of Hand Book of Procedures. Therefore we find force in the contention of the Ld. Advocate for the appellant that once the transferability is endorsed after the verification and examination by the licensing authority, department cannot take shelter under .....

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d notification exempts materials imported into India against a DFIA issued in terms of Para 4.2.1 and 4.2.2 of FTP from the whole of customs duty leviable thereon which is specified in the First Schedule to the Custom Tariff Act, 1975 (51 of 1975) subject to the condition namely that the description, value and quantity of materials imported are covered by the said authorisation and the said authorisation is produced before the proper officer of customs at the time of clearance of debit. 19. We f .....

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Enterprises Vs. Commissioner of Customs, Mumbai reported in 2005 (189) ELT 0135 (Tri-LB) has observed that 42. ...The Customs officers, while implementing the Notification 203/92-Cus., cannot question or appear to question the decisions and actions of the competent authority in the said Directorate unless it is strictly permitted by the terms of the Notification. The plain reading of condition (vii) makes it abundantly clear that benefit of Notification is to be extended to a person other than .....

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lready been quashed and set aside by the Hon ble Punjab & Haryana High Court in Pushpanjali floriculture Ltd., Vs. UOI 2016 (340) ELT 32 (P&H), along with effects of Notification No. 90 dated 21.08.2014 and Policy Circular No. 3 dated 02.08.2013, while observing thus- 28. How an importer could be required only to import? inputs which have actually been used in products which already stand exported. SION norms are notified to prescribe permissible inputs against any export product. The DF .....

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