TMI Blog2019 (9) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... c product being not covered is accepted, then since Licence does not mention specific name of any goods, no any goods can be allowed to be imported under the said Licence, which is not the intention of DGFT in issuance of Licence - the description of relevant Food Additives/ or Food Flavouring clearly covers the Green Cardamom, therefore, it cannot be said that only because the specific name of Green Cardamom is not mentioned, the benefit will not be given. Denial also on the ground that CTH is not mentioned in the Licence - HELD THAT:- The ITC heading is not significant, once the imported goods is covered under the description, the benefit is available - merely because CTH was not mentioned or ITC (HS) is not matching so far description covers the goods imported, the benefit cannot be denied to the assessee. Production of evidence of actual use of imported goods in the export goods - HELD THAT:- There is no requirement of actual use, only the requirement is that whether the imported goods is capable of being used in the export goods and there is no dispute that Green Cardamom is indeed used in manufacture of Pickles and Biscuits as observed from the various books on Green Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er payment of duty. Being aggrieved by the denial of DFIA import benefit to the Bill of Entry Number, the appellant filed appeal before Commissioner (Appeals), the Ld. Commissioner (Appeals) rejected the appeal on the ground that the cardamom was not actually used in the export of goods i.e. vegetable Pickles and Biscuits. 2. It was also observed that the DFIA Licence does not indicate the product description cardamom in the list of inputs hence, unless actual use in the export product is established, the appellant was not entitled to claim DFIA benefit. It was also observed by the Ld. Commissioner (Appeals) that the Customs Tariff Head (CTH) of import items allowing in 2 DFIAs are not telling with CTH of Green Cardamom. The appellant has not adduced any evidence to show as to how Green Cardamom could be used as Food Additives for Pickles and as Food Colour/Flavouring Agent or as Flavour Improvers in Biscuits, accordingly, the claim of the appellant for aforementioned benefit of DFIA is neither valid nor sustainable. Being aggrieved by the Order-In- Original, the present appeal filed by the appellant. 3. Sh. Hardik Modh Ld. Counsel for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Revenue reiterates the findings of the impugned order. He further submits that the goods do not fall under specific ITC (HS) mentioned in the Licence which is significant, therefore, the benefit of DFIA was rightly denied. 6. We have carefully considered the submissions made by both the sides and perused the records. We find that the appellant have imported Green Cardamom and claimed the benefit of DFIA against Licence which was issued for relevant Food Additives for Pickles FDI approved as imported goods against the export of Pickles and relevant Food Colour/ Flavouring Agent/Flavour Improvers as the imported goods against export of Biscuits. The lower authority has denied the benefit on the ground that: 1. The Green Cardamom is not mentioned in the Licence in the list of imported goods. 2. The Green Cardamom was not used actually in the export goods. 3. Customs Tariff Head is not mentioned in the Licence. 7. We find that in the Licence, there is no mention of name of specific items but it only mentioned relevant Food Additives for Pickles FDI approved, therefore, all those goods which are use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re made of brass with extremely long pouring spouts into which are wedged a few cardamom seeds. As the coffee is poured it automatically extracts some of the unusual flavour from the seed. Book of Cooking with Herbs and Spices: From the above consistence details of use mentioned in various books, there is no doubt that the Green Cardamom is used in making Biscuits and Pickles as Flavouring Agent and Food Additives. 8. As regard issue raised by the department that specific name of Green Cardamom is not mentioned, we find that once the imported goods is covered under broad description in Licence and if any item covered in such broad description will stand covered. If Revenue s contention regarding specific product being not covered is accepted, then since Licence does not mention specific name of any goods, no any goods can be allowed to be imported under the said Licence, which is not the intention of DGFT in issuance of Licence. Hence the Revenue s view in this regard has no legs to stand. The identical issue was raised in the case of Unibourne Food Ingredients LLP (Supra), wherein this Tribunal has given following ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants 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 description of goods mentioned in the DFIA. We accept this contention as the goods mentioned in the DFIA are food flavour . It is therefore undisputed that the appellant is entitled to import saffron as a food flavour irrespective of ITC (HS) heading mentioned in the DFIA. From the observation in the above case, it can be seen that the ITC heading is not significant, once the imported goods is covered under the description, the benefit is available. Similar view was taken in the judgment of Devoir Trading Ltd (Supra) wherein following order was given by this Tribunal: We however find that the authorities below have sought to deny the benefit of duty free import of inshell walnut against the DFIA issued for export of biscuit on the ground that CTH mentioned in the Annexure -A to DFIA are different from the CTH mentioned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
