TaxTMI 
TaxTMI 
2020 (9) TMI 366
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.... import of 'sweet whey powder' valued at Rs. 3,67,36,871, against 10 bills of entry, filed between 31st December 2010 and 1st July 2011, claiming exemption under notification no. 40/2006-Cus dated 1st May 2006 or no. 98/2009-Cus dated 11th September 2009, under two 'duty-free import authorization (DFIA)' licenses permitting import of 'leavening agent' that was originally issued to M/s Ravi Foods Pvt Ltd for the manufacture of 'biscuits' intended for export. In order in-original no. 13/2018-19/RCB/CC/(X) dated 23rd August 2018, Commissioner of Customs (Exports), New Custom House, Mumbai, confirmed duty liability of Rs. 1,67,56,802 to be recovered under section 28(4) of Customs Act, 1962, along with interest as applicable, from the importer w....
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....e impugned order, are common ground. The importer is not only not an actual user but also is a transferee of a transferee as the original holder, M/s Ravi Foods Pvt Ltd, did not transact directly with importer herein. It is also not in dispute that the original license holder fulfilled the export commitment using inputs, including 'leavening agents' - an indispensable ingredient, sourced from elsewhere and, while filing shipping bills, had not declared the composition of the export product. 5. We also take note of the circumstances, unusual as they are, in which, according to the original authority, the critical mass was attained by the distinguishment of the ITC HS code, appropriate to the permissible item of import, from the goods actual....
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....ot chemically chemical distinguishable. Being concentrate of protein in powder form after drying, it surely does find use in other industries. The obvious, and most commercially lucrative, of these would be for oral ingestion as food supplement. In the baking industry, it is considered to be a superior, and organic, source of leavening adding to the cost of production. The conclusion in the impugned order, probably prompted by the commercially widespread usage as supplement, of exclusion from any other use is, therefore, not on good authority. 8. In addition to asserting that the impugned goods are leavening agents, Learned Counsel was no less concerned about the discarding of the relevancy of proceedings before the licensing authority whi....
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.... of the original holder of the license as well as those of the importer. This, as pointed out supra, is without good authority. 11. Furthermore, the disinclination on the part of customs authorities to accept the clarifications issued by the licensing authority is mystifying. It is not the case of the adjudicating authority that there has been misdeclaration of the classification, or value, of the goods implying that the essentials for assessment have, thus, been complied with. Consequently, there is no finding of differential duty attributable to re-assessment. The impugned order fastens recovery, and other detriment, for non-compliance, in terms of eligibility and fulfilment of conditions, with exemption notifications issued for the purp....
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....ore us, just as these were before the adjudicating authority, statements of admission to the contrary, notwithstanding these not having been retracted, lack authenticity and relevance. While these may have served the proximate purpose of confirming an allegation during the adjudication proceedings, it would be naivete to expect us to accord unquestioned validity to such statements recorded by investigating officers. Furthermore, according to the adjudicating authority, the several clarifications of, and correspondence with, the licensing authority did not advance the claims of the appellant herein as none of them pertained to 'sweet whey powder' which, in his view, was not the product intended while clarifying on substitutes for leavening a....
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....hiff of allegation that the said endorsements had been procured unlawfully. The prescription of 'actual user' condition in the Foreign Trade Policy, and reflected in the corresponding notification issued under section 25 of Customs Act, 1962, cannot be said to be extended to transferees of such licences, except where specified otherwise, either in the policy prescriptions or in the notification, for that would be tantamount to imposing a condition that was not intended by the Central Government. Neither the adjudicating authority nor Learned Authorised Representative have been able to establish that 'post-export, endorsed for transfer' license continued to be entailed with such actual user condition. In any case, the ultimate usage of such ....