TMI Blog2020 (9) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... izations 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 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 unless particularly specified, 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 renders the logic of Revenue to be unacceptable. There is no evidence on record that the appellants were aware of the composition of the exported goods. Hence, the appellant cannot be expected to conform to such imports as they are not cognizant of. From the available records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reign Trade Policy notified by Director General of Foreign Trade under the Foreign Trade (Development Regulation) Act, 1992, was not within their entitlement as traders and that flour (ITC (HS) 11010000) which was permissible under the norms, described as SION E5, could not be substituted by the impugned goods as declared in the bills of entry and which could, at best, be extended only to maida or atta . It was pointed out that, according to the adjudicating authority, the imported goods were flavouring agents that would not be an acceptable substitute for the basic ingredient that is permitted for import and that, the exporter having failed to declare the quality, technical characteristics and specifications of the inputs used for manufacture of the export goods in the relevant shipping bills, the condition of conformity to those had been breached by the appellants at the time of import and that the licensing authority, having vide letter dated 2nd April 2013 clarified that public notice no. 93 dated 1st February 2012 had incorporated wheat gluten as permissible import for manufacture of biscuits, imports against duty-free import authorization licenses prior to that m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Calcutta in Atlantis (East) Ltd v Additional Member, Board of Revenue [(1975) 36 STC 210 Cal)]. 7. In our opinion, Revenue has misdirected itself on this aspect. The principle adverted to by Learned Authorised Representative is an instrument for interpreting legislative intent in ambiguous circumstances as the enacting body cannot be approached for clarification and it is the judicial institutions that are called upon for ascertainment of correctness in implementation of the statute. In interpreting policy formulations, framed by a competent executive authority under legislative sanction, the authorized instrumentality responsible for such formulation exists, and in contiguous harmony, with other instrumentalities such as customs essentially a tax collection authority - but also assigned, by reason of convenience and economy, with responsibility to ensure compliance with such policy. This availability, and, indeed, the concomitant obligation to seek clarification of perceived ambiguities discards recourse to the principle of ejusdem generis in the present situation as a substitute. 8. It is not the case of the adjudicating authority that there has been misdeclaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that decision, the Tribunal was considering a plea that the decision of a lower authority could not be construed as a restriction on the appellate authority in deciding a different appeal. The present circumstances are vastly at variance in view of the decision of the Tribunal in re Uni Colloids Impex P Ltd. The acceptance of this adjudication order which also relied upon this decision does not advance the case of Revenue. 12. 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 ingredient 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 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 transferee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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