TaxTMI 
TaxTMI 
2018 (10) TMI 1485
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....n of this Court towards judgment delivered by the Division Bench of Punjab and Haryana High Court in the case of Pushpanjali Floriculture Pvt. Ltd. Vs. Union of India and Others decided on 01/07/2016 in CWP No12647/2016 reported in 2016 (340) ELT 32 (P & H) and is his contention is that the controversy involved in the present case stands concluded by the aforesaid judgment. Paragraphs No.41 to 45 of the aforesaid judgment reads as under:- "41. The judgement of the Bombay High Court in Sevantilal (supra), on which the respondents place pointed reliance, is clearly distinguishable. That was a case in which the issue involved related to exemption from anti- dumping duty, and the amendment in this regard by Notification 24/2013 dated 18.04.2013, which limited the exemption earlier available under Notification 98/2009-Cus, dated 11.09.2009. These were, in turn, provoked by the amendment of the FTP, by introducing a provision to the effect that exemption from anti-dumping duty would be available on actual user basis only, before endorsement of transferability. It was in this context that the petitioner, in that case, contested its right to avail the benefit of exemption from ant....
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....4-2009 dated 20.02.2016 adding new products ineligible for duty free benefits under Target Plus Scheme, the Hon'ble Supreme Court in DGFT Vs. Kanak Exports reported in MANU/SC/1258/2015MANU/SC/1258/2015 : 2015 (326) ELT 0026 (SC) held that the said notification cannot be applied retrospectively. 44. It is seen that the DFIA is issued with a limited validity of 24 months. Due to the actions of the Respondents the DFIAs could not be utilised by the petitioner. The Hon'ble Supreme Court in the matter of Sandeep Exports Ltd., MANU/SC/0045/2004MANU/SC/0045/2004 : 2004 (9) SCC 128 had directed the Respondents to issue certificate for the purpose of revalidation of expired licenses due to disputes raised by the department. We are satisfied that due to the impugned invalid notifications / Public Notice / Circular, licenses could not be utilised by the petitioner. The petitioner cannot be expected to present licenses for debit in such circumstances. Therefore, a case for directing revalidation of the licence is also made out. 45. In view of the above discussion, the writ petition of the petitioner is partially allowed in the following terms: (i)Clause 4 of....
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....red till date in the matter. Not only this, in paragraph No.3 of the reply filed by the Union of India, it has been stated that so far no authority has denied any benefit to the petitioner. 06-After hearing learned counsel for the parties, this Court is of the opinion that the issue involved in the present case stands concluded by the judgment delivered by the Division Bench of this Court. This Court in the case of M/s. Global Exim (Supra) in paragraphs No.2 to 42 has held as under:- "2.The petitioner No.1 is a partnership firm registered under the Indian Partnership Act, 1932, having its office and place of business at Indore. 3.The Foreign Trade Policy (FTP) for 2009-14 was notified by the respondent No.1 incorporating the provisions relating to the import and export of goods. The relevant provision of duty exemption / remission schemes are covered under Chapter 4 of the Foreign Trade Policy and Hand Book of procedures. 4. Clause 4.2.2 and 4.2.3 of DFIA reads as under:- "Scheme 4.2.2DFIA is issued to allow duty free import of inputs, fuel, oil, energy sources, catalyst which are required for production of export product. DGFT, by me....
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....ised the following query which is reproduced as under :- "Description of Goods does not cover in the Duty Free Import Authorisation (DFIA) under DFIA Pre-sheet for import item list and so the BE cannot be appraised under the Scheme / License. Authorisation for transfer of DFIA License 1210008284 to M/s. Global Exim do not contains the details of original license issued by the DGFT". 10.The petitioners thereafter replied to the respondent No.3 on 27.06.2018 by pointing out that the query is not clear and therefore needs to be clarified in order to make appropriate reply. 11.The respondent No.3 thereafter replied to the said letter by rejecting the benefits of customs notification No.98/2009-Cus dated 11.09.2009. The same is reproduced below :- "BE No.6993518 dated 28.06.2018 Description of the goods given in the BE does not cover in the DFIA Authorisation. Imported goods ie., bearings must be actually used in the export product in terms of DGFT Notification No.31 dated 01.08.2013. Moreover goods being specified under Para 4.32.2 of HBP, tecl. Specs., quality and characteristics of the goods imported must match with the inputs used in the ....
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....de Policy (2009-14) by inserting a new para 4.1.15 through notification No.31 dated 01.08.2013, which reads as under :- "4.1.15Wherever SION permits use of either (a) a generic input or (b) alternative inputs, unless the name of the specific input(s) [which has (have) been used in manufacturing the export product] gets indicated / endorsed in the relevant shipping bill and these inputs, so endorsed, match the description in the relevant bill of entry, the concerned Authorization will not be redeemed. In other words, the name / description of input used (or to be used) in the Authorisation must match exactly the name / description endorsed in the shipping bill. At the time of discharge of export obligation (EODC) or at the time of redemption, RA shall allow only those inputs which have been specifically indicated in the shipping bill. 3.Para 4.2.3 of FTP is being amended by adding the phrase "4.1.14 and 4.1.15" in place of "and 4.1.14". The amended para would be as under : "Provisions of paragraphs 4.1.11, 4.1.12, 4.1.13, 4.1.14 and 4.1.15 of FTP shall be applicable for DFIA holder." 4.Effect of this Notification : Inputs actually used in manufacture of th....
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....gine Bearings are plain or sleeve bearings in contrast to roller, ball and needle bearings, called anti friction bearings, which are used where minimum lubrication is available. The goods imported are bearings (which are not Engine bearings). 21.It is pointed out that the Regional Licensing Authorities have endorsed the import item name specifically against serial No.2 to read as Bearing (all types other than Engine Bearings) such as Ball bearing/Taper/Cylindrical/Needle Roller Bearings. Apart from the above endorsement, the Regional Licensing Authorities have not made any additional endorsements. In the absence of any further endorsements, the Regional Licensing Authorities deemed to have permitted import of Bearings without any additional requirement with respect to technical specification, quality and characteristics of the inputs used in the export product. The DFIA transferee is not required to prove, afresh, whether the inputs are actually used in the export product. 22.Learned counsel has submitted that Custom Notification 98/2009 stipulates in respect of 'resultant products' specified under the sensitive list, whereas DGFT provision para 4.32.2 of ....
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.... ie., Ball Bearing under net to net ITCHS - 84822011 / 84825012 / 84824000 filed the bill of entry for import of items other than those which are not covered under Serial No.3 of the list of items submitted by the petitioners, for which "Query" has been raised to the petitioners to file their reply based on which only assessment and order thereof would be processed. 27.Both sides were heard at length. We have carefully perused the records before us. Our attention was drawn by both sides towards various Notifications, Circulars, Public Notices and precedents which we have taken into consideration. 28. In the case in hand, the resultant product is 'Agricultural Tractors' which is not specified under para 4.32.2 of HBP and therefore, the petitioners are not required to correlate the technical specification, quality and characteristics of the imported goods. 29.The Transfer Letter issued by Pushpanjali Floriculture Ltd to Global Exim clearly indicates that transfer of DFIA which is permitted as per the provision of Para 4.2.6 of the FTP-(2009-14). The DFILA licenses are freely transferable and accordingly, the DFIA holder transferred the DFIA to Pushp....
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....lue allowed in the DFIA, (as amended upon competition of export), there is no necessity to satisfy the requirements of Para 4.1.15 of FTP. It is impossible to comply the condition which states that those inputs which are actually used in export product for availing DFIA exemption. 35. The Division bench of Punjab & Haryana High Court in the case of Pushpanjali Floriculture Ltd., V/s. Union of India, 2016 (340) ELT 0032 (P&H) held that, "from the product which already stands exported, the inputs used in the manufacture of thereof should somehow be extracted, and only such inputs be allowed to be subsequently imported into India. To say the least, such requirement is manifestly absurd, and it's very incorporation, in the impugned Notification and Public Notice, reflective, as the learned Senior Counsel has correctly emphasized, of total non-application of mind, on the part of the authorities issuing the said Notification/Public Notice." 36. The Regional Licensing Authorities after examining the relevant export documents, has endorsed transferability permitting inputs as specified in the said DFIA. Therefore, DFIA transferee is not required to prove, afresh, whet....