2019 (3) TMI 1449

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....gainst Export of Biscuits as per Standard Input/output Norms (SION E-5) for the import of Wallnuts in Shell sought to be covered under the description of Food Flavour/Flavouring Agent/Flavour improvers or Dietary Fibre. 3. The brief facts of the case is that the appellant is a transferee of DFIA No. 0310738215 dated 19.06.2013 issued against the export of Biscuits as per SION E-5. The appellant imported Walnuts In shell by filing BE No. 8902689 dated 19.06.2013 and sought DFIA benefits under Custom Notification No. 98/2009-Cus dated 11.09.2009. The said DFIA inter alia allows duty free import of Relevant Food Flavour/Flavouring Agent/Flavour improvers (Serial No. 6) or Dietary Fibre (Serial No.11). The assessing officer sought certain clar....

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....any restrictive condition on the transferee to deny the exemption sought; that the judgement of the Hon'ble Bombay High Court in the case of A.V. Industries Vs. UOI - 2005 (187) ELT 9 Bom was relevant in this aspect; that in the case of USMS Saffron Co. Vs. CC, ACC, Mumbai in Final Order No.A/3267/15/CB dated 30.09.2015 it has been held by the Hon'ble Tribunal that as long as goods imported fell within the description of goods described in the DFIA, exemption from duty should be extended ; that in the said case saffron was permitted to be cleared under DFIA against goods viz., food flavor specified in the DFIA; that the Hon'ble Tribunal Hyderabad in appellants own case vide Final Order No. A/31757/2017 dated 06.11.2017 held that there was n....

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....ht to be cleared by appellants undisputably fall under 08023100 of Custom Tariff, and answers the description specifically 'walnuts', whereas the imported goods permitted in the subject DFIA issued by licensing authorities included, inter alia 'relevant food flavor/flavouring agent/flavor improvers' and dietary fibre, both of which fall in different ITC HS codes as noted earlier. The description of goods viz., food flavor/flavouring agent/flavor improvers or dietary fibre is specific. They cannot reasonably equated to walnuts in shell. There is no evidence produced that walnuts are food flavor or agents or improvers; they do contain fibre, but they are not to be treated or described as dietary fibre as such. The Commissioner (Appeal) furthe....

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.... flavor/flavouring agent/flavor improvers' and dietary fibre. The ITC (HS) Numbers for the Walnuts is specific and falls under CTH No. 08023100 whereas the ITC HS Codes specified by the licensing authorities as 13000000 and 2304090 respectively. The language of notification is specific and unambiguous that the benefits of exemption from customs duty would apply to goods of the description specified in the DFIA. 7. The Ld. Counsel contended that as regards ITC (HS) Nos. the Hon'ble Tribunal in the case of USMS Saffron Co. Vs. Commissioner of Customs ACC Mumbai in Order No. A/3267/2015-WZB/CB dated 08.10.2015 held that "the appellants contention is that duty exemption criterion is only the description (and quantity) mentioned in the SION nor....

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....facturing of biscuits and confectionary products. Several Wrappers. Lastly, the Ld. Counsel submitted a copy of judgement dated 11.10.2018 in the case of Global Exim Vs. UOI of Hon'ble Madhya Pradesh High Court in an identical case of import of Walnuts-in-shell covered under the description Nut and Nut products, Deitary Fibre , Flavours described in the DFIA of the quantity and value mentioned in the DFIA wherein the Hon'ble Court allowed the petition by following the ratio of judgements in the case of Global Exim Vs. UOI in WP No. 15132 of 2018 passed by the Hon'ble Madhya Pradesh High Court and in the case of Pushpanjali Floriculure Ltd., Vs. UOI in CWP No. 12647 of 2016 by the Hon'ble Punjab & Haryana High Court. 8. On the contra, the d....

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....technical opinion is displaced by specific and cogent evidence in the form of another technical opinion as held by the Hon'ble Gujarat High Court in the case of Inter Continental (India) Vs. UOI- 2003 (154 ELT 37 (Guj). There is no such contrary technical opinion is produced by the revenue. The Ld. Commissioner (Appeals) in the OIA himself accepts that Walnuts in shell contain dietary fibre albeit in small portion; In this regard, the ratio of judgement in the case of Commissioner of Customs, Kolkotta Vs. G.C. Jain is relevant and squarely covered in the present case. The Ld. Counsel for appellant is right in relying upon the judgement whereby the Hon'ble Apex Court has held that Material would mean Material required for manufacture of expo....