2017 (9) TMI 1144

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....regard to any discrepancy in the export documents. On 16.08.2012 the DRI officers visited to the appellants and resumed the records and recorded the statement of Shri Vikram Kothari, Director. Statement of some suppliers of perfume was also recorded. As per the chapter 4 of HBP related to DFIA, the policy circular no.57/2009-14 dated 06.03.2012 was issued in relation to para 4.32.2 of HBP (2009-14) which clarified that 22 items mentioned in said para are inputs. During the period 2004-09 para 4.55.3 HBP was equivalent to 4.32.2. The CBEC issued a circular no.46/2007-Cus dated 20.12.2007 clarifying the notification no.40/2006-Cus. 3. As per the proviso of clause (i) of the condition of notification no. 40/2006 read with circular number 46/2007Cus, the 22 items specified in para 4.55.3 are resultant product i.e. in the case of the appellant these are pan masala / pan masala gutkha. After the policy circular no.57/2009-14Cus dated 06.03.2012, the Revenue was of the view that condition of para 4.32.2 (2009-14) read with 4.55.3 (2004-09) is that the exporter is required to give declaration with regard to technical characteristic etc. of the inputs in the shipping bill. As essential o....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... authorization has been redeemed or not. He further submitted that if it is presumed that items specified are inputs, however policy circular no.57/2009-14 dated 06.03.2012 notification no.31(RE2013)2009-14 dated 01.08.2013 cannot have retrospective effect in the light of the decision in the case of Hoewitzer Organic Chemical Co. Vs. DGFT 2013 (294) ELT 7 (Mad), Shri Hari Exports Vs. DGFT 1994 (73) ELT 794 (Del) and DGFT Vs. Kanak Exports 2015 (326) ELT 26 (SC). 7. He further submitted that neither the goods are available nor has been exported under any bond, therefore, goods are not liable for confiscation as held by the Larger bench of this Tribunal in the case of Shiv Kripa Ispat (P) Ltd. Vs. CCE - 2009 (235) ELT 623 (Tri-LB) which has been affirmed by the Hon'ble High Court of Punjab and Haryana in the case of Raja Impex (P) Ltd. - 2008 (229) ELT 185 (P&H). He also submitted that penalties on the appellant are not imposable as no case has been made out of suppression of facts against the appellant. 8. On the other hand, Ld. AR relied on the policy circular no.57/2009-14 (RE-2011) dated 06.03.2012 to say that technical characteristics, quality and specification should be s....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e of paper and paper board, insecticides, lead ingots, zinc ingots, citric acid, relevant glass fibre reinforcement (glass fibre, chopped / stranded mat, roving woven surfacing mat), relevant synthetic resin (unsaturated polyster resin, epoxy resin, vinyl ester resin, hydroxyl ethyl cellulose), Lining Material." CBEC Circular no.46/2007-Cus dated 20.12.2007 :- "The matter has been examined by the Board. In terms of paragraph 4.55.3 of the Handbook of Procedures, Vol.I 2004-09, in respect of some 22 items specified therein, the exporters are required to give a declaration with regard to technical characteristics, quality and specification in the Shipping Bill. This position has also been captured in Circular No.16/2006-Cus dated 9.5.2006. Further, condition (i) of notification No.40/2006-Cus dated 1.5.2006 states that in respect of the resultant product specified in paragraph 4.55.3 the materials permitted in the DFIA shall be of the same quality, technical characteristics and specification as the materials used in the said resultant product and that in respect of the said resultant product, the exporter shall give declaration with regard to the quality, technical charac....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....icable for DFIA holder." 4. Effect of this Notification: Inputs actually used in manufacture of the export product should only be imported under the authorisation. Similarly inputs actually imported must be used in the export product. This has to be established in respect of every Advance Authorisation / DFIA." Public notice no.35(RE-13)2009/14 dated 30.10.2013:- Subject: Applicability of provisions of para 4.1.15 of FTP, as incorporated vide Notification No.31 dated 1.8.2013 and amended vide Notification No.48 dated 30.10.2013 In exercise of the powers conferred under Paragraph 2.4 of the Foreign Trade Policy, 2009-2014, the Director General of Foreign Trade hereby specifies the applicability of para 4.1.15 of the Foreign Trade Policy 2009-2014, as follows: 1. Where both export and import have been completed prior to 1.8.2013, such cases will not be covered under Notification No. 31 dated 1.8.2013 (as amended), irrespective of whether the concerned authorization (AA/DFIA) has been redeemed or not. 2. If only export has been fully completed / partly completed before 1.8.2013, then the corresponding import would be allowed subject to an undertaking from....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....sue came up before this Tribunal in the case of Global Exim (Supra) wherein this Tribunal has observed as under: "5. According to the proviso, in respect of resultant product specified in paragraph 4.55.3 of the handbook of procedures of the Foreign Trade Policy, (FTP), the materials promoted in the authorization shall be of the same quality, technical characteristics and specifications as the materials used in the said resultant product. It is also provided that in respect of these resultant products, the exporter is required to give declaration with regard to the quality, technical characteristics and specifications of materials used in the shipping bill. Gemi Motors India Pvt. Ltd. from whom the appellant obtained the DFIA, had exported electric motors and obtained DFIA in respect of seven items such as aluminum sheets, aluminum ingots CRNO steel ball bearings etc. In the list of resultant products in paragraph 4.55.3, electric motors do not figure. However, bearings are listed. However, the paragraph 4.55.3 starts with the following paragraph before listing the resultant products "however in respect of the following items, the exporter shall be required to give declaration w....