TaxTMI 
TaxTMI 
2017 (11) TMI 438
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....UERY RAISED: Vide Notification No. 31/01.08.2013 Para 4.1.15 was inserted wherein it stipulates that inputs actually used in the manufacturing of the export product should only be imported under the DFIA authorisation. Similarly inputs actually imported must be used in the export product. Please submit the shipping bills under which the related products were exported (Biscuits and Assorted Confectionaries) with the relevant consumption of the imported inputs to fullfill the criteria under the para 4.1.15. Further the actual product being imported i.e, Apple Juice Concentrate is not figuring in the DFIA License No. 0310776851 dated 02.04.2017. Please furnish information/documents on the above issues to take up assessment of the Import consignment" 3. The appellant thereafter submitted a reply vide letter 06.09.2017to the Principal Commissioner of Customs, Hyderabad, explaining that the appellant is only a re-transferee of the said DFIA, and inter alia submitted that the appellant is not required to fulfil the condition of Notification No.31 dated 01.08.2013. The appellant further submitted that the licensing authorities have already verified and examined all the relevant....
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...., Hyderabad, which was communicated to the appellant, the Dy. Commissioner had also granted a hearing for further course in the matter. The appellant submits that the Dy. Commissioner, who is not empowered to review the decision of the Principal Commissioner of Customs, in the understanding of the appellant, has given the said hearing only for further consequential procedural aspects. 7. Since the goods are perishable and carry short shelf life and the mandatory pre-deposit is also paid by the appellant in terms of Section 129E of the Customs Act, 1962, the appeal was taken up for disposal with consent of both sides. 8. The Ld. Advocate of the appellant contended that the entire case is squarely covered by the judgement of A.V. Industries Vs. UOI - 2005 (187) ELT 9 (BOM) of the Hon'ble Bombay High Court, wherein it was held that- "16. ...........However, when the import is in accordance with import license issued to petitioner, the Respondents cannot take shelter under the import policy and purport to take action against the petitioner. It is not the case of the respondents that the deletion of the conditions set out in the license is due to misrepresentation or ....
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....on of actual usability of inputs and quantities can now be imposed on the DFIA. Accordingly, the Ld. Advocate for the appellant submits that the impugned decision deserves to be quashed and set aside by extending DFIA benefits for the present consignment covered under the aforementioned Bill of Entry. 12. In response, the Ld DR submitted that actual usability is required to be established in the case of DFIA Licenses, since it is covered under Notification No. 31 dated 01.08.2013. The DR also pointed out the condition of actual usability as mentioned in the said DFIA.The Ld. DR further contended that no proof to show that the DFIA has been actually transferred to the present appellant is annexed in the Appeal in the instant case. 13. Heard both the parties and perused the records. 14. On maintainability of appeal, the Ld. DR has not disputed that pursuant to query raised during assessment under the Act, the impugned decision is taken by the Principal Commissioner, and communicated by the Dy. Commissioner. We are satisfied that the appeal is maintainable as per the ratio laid down in the case of Swiber Offshore Construction Pvt. Ltd. Vs. Commissioner of Customs, Kandla - 20....
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....edent and we cannot ignore the same to deny exemption once covered under the description, value and quantity mentioned in the Transferrable DFIA. 18. The second arguement put forward by the Ld. Advocate is with respect to conditions of DFIA exemption Notification No. 98/2009-Cus dated 11.09.2009. The said notification exempts materials imported into India against a DFIA issued in terms of Para 4.2.1 and 4.2.2 of FTP from the whole of customs duty leviable thereon which is specified in the First Schedule to the Custom Tariff Act, 1975 (51 of 1975) subject to the condition namely that the description, value and quantity of materials imported are covered by the said authorisation and the said authorisation is produced before the proper officer of customs at the time of clearance of debit. 19. We find that in the instant case imported goods described as Apple Juice Concentrate and value &quantity thereof, is covered under the description, value and quantity of inputs permitted in the DFIA. We do not find any condition in the Notification 98/2009-Cus dated 11.09.2009 (as amended) to the extent that only those inputs and to the extent of their quantity actually used shall be availa....