TMI Blog2022 (3) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... LD THAT:- It is fairly agreed that Wheat Flour/Wheat Gluten are specific items and not Generic or alternative inputs. A single quantity is mentioned in the DFIA. The provision of Para 4.12 (ii) of FTP can be applied only when SION prescribes alternative inputs with relevant quantities, which shall be allowed in proportion to the quantities actually used in export product. No such inputs or quantities are mentioned against the input item. Therefore the above provision cannot be applied in the present case. As per Board Circular No. 46 of 2007 and DGFT Circular 50 of 2008, no correlation is required for technical characteristics/quality and technical specification between imported goods and export goods unless item is specified under Para 4.55.3 of HBP (New Para 4.30 of FTP). Neither Wheat Flour nor Wheat Gluten Flour is a specified item under Para 4.30 of FTP. It is settled law that Board Circulars are binding on the department. Further DGFT Policy Circular 72 of 2008 allows import of alternative inputs either used or capable of using in the export goods. In this case, it is evident from the DFIA that the Exporter has used both Wheat Gluten as well as Wheat Gluten Flour in the Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appeal is maintainable under section 129A (1) of the Customs Act, 1962 as per the ratio laid down in:- 1) Unibourne Food Ingredients LLP Vs. Commissioner of Customs, Jamnagar Final Order No. 2) Sterlite optical Technologies Vs. Commissioner of Customs (Export), ACC, Mumbai 2008 (226) ELT 69; 3) Swiber Offshore Construction Pvt. Ltd., Vs. Commissioner of Customs, Kandla 2014 (301) ELT 119 (Tri-Ahd). 2.3. It is submitted that the appellant has imported Vital Wheat Gluten Flour on the strength of a Transferable DFIA No. 031011010834 dated 24.01.2022 which clearly mentions Wheat Gluten Flour under the description of Wheat Flour in the said authorisation. It is submitted that Vital Wheat Gluten is well covered by description, quantity within the value of the DFIA produced by the appellant. 2.4. It is submitted that the decision to reject the claim was contrary to the binding judicial precedents on the same issue. It is submitted that DFIA produced by the appellant clearly mentions Wheat Gluten Flour under the description of Wheat Flour , which itself is an evidence to show that Wheat Gluten flour and wheat flour are actually used in the Export Goods. As r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgement of Hon ble Bombay High Court (Nagpur) in the case of Shah Nanji Nagsa Ltd., Vs. UOI 2019 (367) ELT 335. 2.8. It is submitted that there is no Actual condition mentioned in the DFIA. As per Para 4.27 (iv) no DFIA would be issued where there is a pre-import condition or SION prescribes AU condition. None exists in the present case. It is submitted that the imported goods are not sensitive items as specified under Para 4.30 of FTP and therefore no correlation is required for technical specification, quality and characteristics of the imported goods and inputs used in export product as per Board Circular No. 46 of 2007. It is submitted that as per Policy Circular No. 72 of 2008, flexibility is given for import of alternative inputs which are either used or required for use in manufacturing of goods. 3. Shri. G. Kirupanandan, Learned Superintendent (AR) appearing for the revenue submits that the Revenue s contention is that the benefit of notification is available only when the conditions of notification are satisfied. Reliance is placed upon the judgement of Hon ble Supreme Court in the case of Commissioner of Customs (Import), Mumbai Vs. Dilipkumar Co., wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. There is no such condition either in the policy or in the procedure or in the notification no. 19 of 2015 which stipulates that ITC (HS) No. is a criteria for claiming DFIA benefits as held by this Tribunal in the case of USMS Saffron Co. Inc Vs. Commissioner of Customs, ACC, Mumbai vide Final Order No. A/3627/15/CB dated 30.09.2015. Under Exemption Notification No. 19 of 2015, Materials has been defined as raw materials, components, intermediates, consumable, catalysts and parts which are required for manufacture of resultant product . The Hon ble Supreme Court in the case of Commissioner of Customs, Kolkota Vs. G.C.Jain 2011(269) ELT 307 (SC) has inter alia held that the term used as material required for manufacture of export products would encompass such entities also which are not only directly used or usable as such in the manufacturing processes but also which could be used with same processing This Tribunal in the case of Unicolloide Impex Vs. Commissioner, Mumbai in Final order dated 11.06.2020 (supra) has accepted the contentions of the appellant that the import of wheat gluten as flour stood settled by the decision of the Tribunal in Uni colloide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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