TMI Blog2017 (11) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 - There is no dispute that the quantity and value of goods Apple Juice Concentrate is within the maximum permitted quantity of Relevant Fruit Juice/Pulp/Puree and CIF value endorsed on the Transferrable DFIA. The issue before the Adjudicating Authority was whether documentary evidence is required to show that imported Apple juice concentrate is actually used in the exported product, and further whether to extend DFIA benefit apart from actual use, the quantity actually used is also required to be established 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 quantit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncentrate is not figuring in the DFIA License No. 0310776851 dated 02.04.2017. Please furnish information/documents on the above issues to take up assessment of the Import consignment 3. The appellant thereafter submitted a reply vide letter 06.09.2017to the Principal Commissioner of Customs, Hyderabad, explaining that the appellant is only a re-transferee of the 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 Notification No.31 dated 01.08.2013. It was further contended that the goods are perishable in nature to seek expeditious clearance. 4. Thereafter, Ld. Dy. Commissioner vide letter no.S/28/DEEC/DFIA/01/2017-ACC dated 12.09.2017 informed the appellant the decision of the Principal Commissioner pursuant to the said reply dated 06.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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'ble Bombay High Court, wherein it was held that- 16. ...........However, when the import is in accordance with import license issued to petitioner, the Respondents cannot take shelter under the import policy and purport to take action against the petitioner. It is not the case of the respondents that the deletion of the conditions set out in the license is due to misrepresentation or suppression of material facts on the part of the petitioners. It is not even the case of the revenue that the deletion of the license condition was carried out by the officers of the department in connivance of the petitioners. Therefore, if the deletion 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther contended that no proof to show that the DFIA has been actually transferred to the present appellant is annexed in the Appeal in the instant case. 13. Heard both the parties and perused the records. 14. On maintainability of appeal, the Ld. DR has not disputed that 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 Concentrate'. The exemption is sought under Exemption Notification No.98/2009-Cus dated 11.09.2009 by presenting a transferable DFIA No.0310776851 dated 02.04.2014 which permits duty free import of 'Relevant Fruit Juice/Pulp/Puree'. There is no reason given as to why Apple Juice Concentrate is not covered under the description Relevant Fruit Juice/Pulp/Puree permitted in the DFIA. Ld. DR could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 find that in the instant case imported goods described as Apple Juice Concentrate and value quantity thereof, is covered under the description, value and quantity of inputs permitted in the DFIA. We do not find any condition in the Notification 98/2009-Cus dated 11.09.2009 (as amended) to the extent that only those inputs and to the extent of their quantity actually used shall be available for claiming the exemption benefits. 20. We also find that Larger Bench of Tribunal in the case of Hico 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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