2015 (11) TMI 820

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....f 100% value of the goods and Bank Guarantee of 100% of the duty foregone for clearance of their consignment provisionally. 2. The facts are that an import consignment of 25 Kgs. of Saffron was sought to be Ex Bonded duty free under Notification No. 98/2009-Cus. dt. 11-09-2009 vide Bill of Entry No. 2135531 dated 15.05.2013 as "Food Flavours" under a DFIA License 0310630718 dated 11.05.2011 transferred in appellant's name. This DFIA was issued against SION norm E-1 for the export of assorted confectionary products. The benefit of DFIA notification was denied by adjudicating authority vide Order No. CAO/DC/882/SKM/2013/ADJ/ACC dated 27.05.2013 on the basis that the import of saffron as food flavour is permissible only if the same is u....

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....ts, CESTAT vide order dated 1.5.2015 set aside the duty demand and penalty relying on the judgment of Mumbai High Court in the case of A.V. Industries 2005 (187) ELT (BOM). 4.1 The next contention of the learned counsel is that the Commissioner (appeals) under order-in-appeal dated 27.10.2010 had allowed the import of saffron under the description of "food flavour" against the export of biscuits under the DFIA License. And the said order has been accepted by the Committee of Commissioners. 4.2 The third contention is that the Tribunal in a similar case vide order number A/11572/2014 dated 03.09.2014 set aside the decision of Commissioner Ahmedabad to release the goods provisionally on submission of a Bank Guarantee for 20% of the duty....

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.... against the petitioner. Therefore, if the deletion was a bonafide error or misconstruction of the import policy by the officers of the department the petitioners cannot be made to suffer." We note that in the present case the License did not bear any condition after discharge of the export obligation and its transfer to the appellant. Further wherever the Licensing Authority wanted to impose any condition at the time of transfer, it did so in respect of certain items. But no condition was imposed in respect of saffron as "food flavour". 6.1 The appellant's 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 ....

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.... now impose strict conditions for provisional release when there are Orders of the Tribunal and the Commissioner (Appeals) in favour of the appellant. Therefore the Order imposing 100% Bank Guarantee is not sustainable. 6.3. In our view, the adjudicating authority does not have the authority to impose such conditions for provisional release. This exercise of the power is very arbitrary and suffers from lack of reasonableness in view of the judicial pronouncements in appellant's favour. We further find that the letter of DC date 06.07.2015 stating that appeal has been filed against 'said' Order has no meaning because CESTAT in the Order dated 20.01.2014 only remanded the matter allowing the appellant to submit a fresh License. The....