Tribunal Grants DFIA Benefits for Wheat Gluten Import; Upholds Its Use in Biscuit Manufacturing Under Previous FTP Rules.

The Tribunal allowed the appeal, granting the appellant DFIA benefits for importing Wheat Gluten under the description of Wheat Flour as specified in SION and the DFIA license. The Tribunal found the appeal maintainable under Section 129 (1) of the Customs Act, 1962, and determined that Wheat Gluten qualifies as a functional flour used in biscuit manufacturing, supported by expert opinions and DGFT clarifications. The Tribunal rejected the revenue's arguments regarding amendments in FTP, confirming that the DGFT's amendment has prospective application and does not affect prior exports. The Tribunal concluded that Wheat Gluten is not a sensitive item under the FTP.

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Issues Involved:
1. Maintainability of the appeal before the Tribunal.
2. Entitlement to DFIA benefits for the import of Wheat Gluten against the input product description Wheat Flour post amendment of SION E-5.

Issue-wise Detailed Analysis:

1. Maintainability of the Appeal:
- The appellant argued that the appeal is maintainable under Section 129 (1) of the Customs Act, 1962, as the decision was taken by the Principal Commissioner of Customs and merely communicated by the Joint Commissioner.
- The Tribunal agreed, citing precedents such as Commissioner of Customs (Import-I) Vs. S.S. Offshore Pvt. Ltd., and Unibourne Food Ingredients LLP Vs. Commissioner of Customs, Hyderabad, which establish that appeals against decisions of higher authorities communicated by lower officers are maintainable.
- The Tribunal dismissed the revenue's contention that the appeal was premature, emphasizing that the Principal Commissioner had already decided to deny DFIA benefits and directed the appellant to pay applicable customs duty.

2. Entitlement to DFIA Benefits:
- The appellant imported Wheat Gluten and claimed DFIA benefits under transferable DFIA licenses issued for the export of biscuits, arguing that Wheat Gluten is a type of Wheat Flour used in biscuit manufacturing.
- The Tribunal noted that DFIA is governed by SION, which does not prescribe ITC (HS) numbers, and benefits can be claimed based on the description of goods.
- The Tribunal referenced DGFT clarifications and technical opinions from reputable institutions like IIT Kharagpur, confirming that Wheat Gluten can be used as a functional flour in biscuit manufacturing.
- The Tribunal highlighted that expert opinions cannot be disregarded without specific and cogent evidence to the contrary, which the revenue failed to provide.
- The Tribunal cited the case of Uni Colloide Impex Pvt. Ltd. Vs. Commissioner of Customs, which established that import of Wheat Gluten as flour is permissible under DFIA.
- The Tribunal addressed the revenue's argument regarding amendments in FTP and clarified that the terms "Generic" and "Alternative inputs" are not defined under Chapter 9 of the FTP.
- The Tribunal concluded that there is no actual user condition in the DFIA license, supported by the Bombay High Court's judgment in Shah Nanji Nagsi Exports Pvt. Ltd. Vs. Union of India.
- The Tribunal confirmed that the DGFT's amendment via Public Notice No. 41 dated 02.11.2016 has prospective application and does not affect exports made prior to the notice.
- The Tribunal emphasized that the DFIA's annexures correctly listed Wheat Gluten under the description Wheat Flour, and the licensing authorities allowed its import within specified quantities and values.
- The Tribunal referenced Policy Circulars No. 72/2008 and No. 22, which provide flexibility for importing alternative inputs and allow transferees to apply for amendments in ITC (HS) numbers.
- The Tribunal concluded that Wheat Gluten is not a sensitive item under Para 4.30 of FTP-2015-2020, and the appellant is entitled to DFIA benefits for its import.

Conclusion:
- The appeal was allowed, granting the appellant the benefit of DFIA for the import of Wheat Gluten, as it falls under the description of Wheat Flour specified in SION and the DFIA license.

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