TMI Blog2020 (9) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... is no finding of differential duty attributable to re-assessment. The impugned order fastens recovery, and other detriment, for non-compliance, in terms of eligibility and fulfilment of conditions, with exemption notifications issued for the purposes of implementing the duty-free import authorization (DFIA) scheme in the Foreign Trade Policy notified by the Directorate General of Foreign Trade under Foreign Trade (Development Regulation) Act, 1992. The eligibility for import of sweet whey powder , as leavening agent for manufacture of biscuits, should not, therefore, have given cause for doubt after receipt of clarifications from the license issuing authority. With the threshold eligibility thus settled, the allegation pertaining to ineligibility arising from import by an entity other than actual user and of ineligibility arising from utilization of a different leavening agent in the exports effected by the original license holder remain to be evaluated. The duty-free import authorizations procured by the appellant-importer had been made transferable in accordance with the provisions of the Foreign Trade Policy and there is no whiff of allegation that the said endors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scuits intended for export. In order in-original no. 13/2018-19/RCB/CC/(X) dated 23rd August 2018, Commissioner of Customs (Exports), New Custom House, Mumbai, confirmed duty liability of ₹ 1,67,56,802 to be recovered under section 28(4) of Customs Act, 1962, along with interest as applicable, from the importer while imposing penalty under section 114A of Customs Act, 1962 on the importer and under both section 114A and section 114AA of Customs Act, 1962 on the director. 2. The case of the customs authorities was that sweet whey powder , assigned ITCHS code 0404, did not conform to either the description as leavening agent or the code in the list attached to the licenses and that, being traders, had improperly resorted to a scheme intended for actual users to effect imports. In the proceedings, substantial reliance is placed upon the statements of the officials of the original holders of the licenses and that of the importers admitting to both these alleged breaches. 3. While confirming the demand, the impugned order noted that SION E-5, applicable to the impugned licenses, covered leavening agent of chapter 28 and 29 at serial no. 6 and that the exports, effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our and water-which, when allowed to rest for a while, gelatinizes the starch. To enhance that vigourousness many other additives and substitutes have been discovered. Particularly so, in the production of food on an industrial scale. 7. Whey powder - whether sweet or otherwise - is the remnant of milk -bovine, ovine or caprine- after being subject to coagulation. The difference between sweet and sour whey lies solely in the choice of coagulant - rennet or acid - and is not chemically chemical distinguishable. Being concentrate of protein in powder form after drying, it surely does find use in other industries. The obvious, and most commercially lucrative, of these would be for oral ingestion as food supplement. In the baking industry, it is considered to be a superior, and organic, source of leavening adding to the cost of production. The conclusion in the impugned order, probably prompted by the commercially widespread usage as supplement, of exclusion from any other use is, therefore, not on good authority. 8. In addition to asserting that the impugned goods are leavening agents, Learned Counsel was no less concerned about the discarding of the relevancy of proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Directorate General of Foreign Trade under Foreign Trade (Development Regulation) Act, 1992. The eligibility for import of sweet whey powder , as leavening agent for manufacture of biscuits, should not, therefore, have given cause for doubt after receipt of clarifications from the license issuing authority. 12. The adjudicating authority has, in rendering the findings, decided that the report of the Chemical Examiner has been wrongly relied upon by the importer as that opinion is restricted only to whey powder which he distinguishes from sweet whey powder , though unsupported by any evidence other than certain statements recorded under section 108 of Customs Act, 1962. For the sanctity of such statements, he had placed reliance on the decisions of the Hon ble Supreme Court in Assistant Collector of Central Excise, Rajahmundry v. Duncan Agro India Ltd [2000 (120) ELT 280 (SC)], in Naresh J Sukawani v. Union of India [1996 (83) ELT 258 (SC)] and State (NCT) of Delhi v. Navjot Sandhu [2005 (122) DLT 194 (SC)]. These decisions were rendered in specific contexts and the ratio therein, which may be applicable to disputes on similar facts, cannot be extended to enc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of the Foreign Trade Policy and there is no whiff of allegation that the said endorsements had been procured unlawfully. The prescription of actual user condition in the Foreign Trade Policy, and reflected in the corresponding notification issued under section 25 of Customs Act, 1962, cannot be said to be extended to transferees of such licences, except where specified otherwise, either in the policy prescriptions or in the notification, for that would be tantamount to imposing a condition that was not intended by the Central Government. Neither the adjudicating authority nor Learned Authorised Representative have been able to establish that post-export, endorsed for transfer license continued to be entailed with such actual user condition. In any case, the ultimate usage of such goods by an actual user which is not in contention here renders the logic of Revenue to be unacceptable. 14. It has been contended by Learned Counsel that circular no. 46/2007-Cus dated 20th December 2007 of Central Board of Excise Customs, the standing instructions issued thereto and policy circular no. 50/2008 dated 6th January 2009 of Director General of Foreign Trade have all clarified ..... X X X X Extracts X X X X X X X X Extracts X X X X
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