TaxTMI 
TaxTMI 
2021 (1) TMI 118
X X X X Extracts X X X X
X X X X Extracts X X X X
....peal is whether the 'Skimmed Milk Powder' imported by the Appellants under the Duty Free Import Authorisation (in short "DFIA") Scheme can be held to be prohibited goods and liable for complete confiscation for non-production of BIS Certificate at the time of assessment? 3. The facts giving rise to the filing of the instant Appeal are stated in brief as follows. The Appellants filed Bill of Entry dated 25.4.2019 for clearance of goods declared as 'Edible Skimmed Milk Powder High Heat' under Duty Free Import Authorisation (in short "DFIA") weighing 11000 kgs (11MT) having total assessable value of Rs. 16,17,568/-. The release of the said goods was said to be subject to compliance of BIS standards. According to the department, in terms of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eely importable under ITC (HS) classification of goods therefore they are eligible for DFIA benefit under the said transferable DFIA. According to learned counsel, the exemption of duty benefits was claimed on the strength of a transferable DFIA issued against Export of Biscuits, which allows duty free import of Skimmed Milk Powder. He further submits that the goods in question are not prohibited goods and that the department had illegally termed it as prohibited goods. Had it been a prohibited item, the licensing authorities would not have issued DFIA license. He further submits that the goods in issue are freely importable goods and they are neither prohibited nor restricted goods under any law. He also submits that if the department is s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that in terms of paragraph 2.2 of Foreign Trade Policy, all imported goods shall also be subject to domestic laws, acts, rules, orders, regulation, technical specifications, environmental and safety norms as applicable to domestically prohibited goods. Para 2 of Chapter 1A regarding Mandatory Indian Standards of BIS is reproduced hereinunder:- "Para 2. Indian Quality Standards: "(A) Mandatory Indian Standards of Bureau of Indian Standards (BIS) Quality of the products that are subject to mandatory Indian Standards, as applicable to domestic goods shall be required to comply with quality specified for the product as per same Indian Standards. For compliance of this requirement, all manufacturers/exporters of these produces to India,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he category of prohibited goods. Had it been a prohibited good then the authorities would not have issued the DFIA. Revenue is terming the skimmed milk powder as prohibited one only because the BIS certificate has not been produced. Now I have to see whether the non production of BIS certificate would render the freely importable goods as prohibited goods. The term 'Prohibited goods' has been defined u/s. 2(33) of the Customs Act, which is extracted as under:- "2(33) "prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be im....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 125(1) mandates grant of permission, to the person, from whose custody or possession the goods were seized, the option to redeem the goods on payment of redemption fine. Although in the instant matter facts are different, but still the option ought to have been given to the Appellant. It is not disputed that the department did not ask for redemption fine and rather went for complete confiscation of the goods under the guise of prohibited goods, which is not correct as per discussions already made. In the said matter i.e. Its my Name Pvt. Ltd. (supra) the Hon'ble High Court also rejected the submission of revenue that by virtue of gold/ silver jewellery, having been imported in contravention of the Act, acquired the character of 'prohibi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onvinced with the view taken therein. No decision/ruling has been cited by the revenue in support of its submission that freely importable goods if imported under the DFIA scheme, the absence of BIS certificate would make it prohibited goods, liable for complete confiscation. Para 2 of Chapter 1A regarding Mandatory Indian Standards of BIS, which has been relied upon by the learned commissioner in the impugned order, has made it obligatory on the exporter to obtain BIS license and not the importer, whereas the appellant herein is the importer. The exemption of duty benefits was claimed on the strength of a DFIA issued against Export of Biscuits, which allows duty free import of Skimmed Milk Powder. The authorities below as well as learned A....