TaxTMI 
TaxTMI 
2022 (9) TMI 26
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....ere allowed to be cleared without payment of duty by debiting the DFIA scrip. 3. Thereafter, post clearance, upon information received, the appellant who is the Commissioner of Customs seized 791 bags of the said in-shell walnuts lying in the godown of one Hemkunt Agro Care Private Limited on the belief that the same are liable for confiscation on the ground that the benefit of duty exemption was wrongly claimed. 4. The respondent-company applied for provisional release of these goods. The adjudicating authority vide its order dated 28th June, 2019 permitted provisional release inter alia of 791 bags of the in-shell walnut upon the fulfillment of the condition of the bond of Rs.36,54,847/- covering the total value of the seized goods and furnishing bank guarantee of Rs.18,27,423/- with self-renewal clause and submission of undertaking/bond that respondent-importer shall pay the duty, fine and/or penalty as may be adjusted by the adjudicating authority. 5. Being aggrieved by the said order of conditional provisional release passed by the adjudicating authority, the respondent filed a customs appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Mumbai. Th....
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....B.Mishra, learned counsel for the appellant Commissioner submits that though the hearing by the Tribunal was concluded on 11th November, 2019 the impugned order has been passed on 11th September, 2020 i.e. after 10 months. 9. He further submits that this is a case which is yet to be finally adjudicated and the order of the Tribunal is premature in as much as it obviates the need for securing the revenue by furnishing of bond/bank guarantee and undertaking in the interim, which is a fundamental requirement before any release of seized goods is ordered. He submits that as the benefit of duty exemption has been wrongly claimed, the 791 bags lying in the godown of Hemkunt Agro Care Private Limited which were liable for confiscation were rightly seized under section 110. He draws the attention of this Court to section 111(o) of the Customs Act to submit that the said goods are liable for confiscation under the said provision. 10. With respect to the decision of the Madhya Pradesh High Court in the case of Global Exim and ors. Vs. The Union of India and ors. (supra), learned standing counsel submits that the said decision has not been accepted by the department but was not appealed aga....
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....the help of documentary evidence that the 794 bags of in-shell walnuts seized at cold storage of M/s Rishi Ice and Cold Storage were imported by the importer under the DFIA scheme against import of "other confectionery ingredients, nut and nut products" and that the same were not liable to confiscation. However, in paragraph No.17.3 in respect of the subject 791 bags of the in-shell walnuts seized at M/s Hemkunt Agro Care Private Limited imported under the DFIA scrip against import item of "dietary fibre", it is recorded that the said goods have been seized and have been held to be liable for confiscation. In respect of both the sets of seized goods, provisional release has been permitted subject to a bond of Rs.36,54,847/- and bank guarantee of Rs.18,27,423/- and an undertaking to pay the duty/penalty adjudged by the adjudicating authority. There is no dispute that the seized walnuts held to be not liable for confiscation and imported under other confectionery ingredients, nut and nut products are the same as the walnuts imported as dietary fibre. 16. We observe that the seized walnuts in-shell were allowed to be cleared against import item of "nut and nut products" and "dietary ....
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....DFIA irrespective of the ITC(HS) members, there is no necessity to satisfy the requirement of paragraph No.4.1.15. Paragraphs No.33, 34 and 35 of the said decision are relevant and are quoted as under :- "33. The stipulation under Para 4.1.15 inserted vide notification No.31 dated 30.10.2013 to the extent that only those actually used inputs in the export product only shall be imported is not applicable to a DFIA transferee. Once the imported goods are covered under the description, quantity as mentioned within the overall CIF value allowed in the DFIA, irrespective of the ITC (HS) Nos, there is no necessity to satisfy the requirement of Para 4.1.15 of FTP-(2009-14) and notification No.90 dated 21.08.2014. 34. On a plain reading of para 4.1.15 abundantly makes it clear that the provisions has no application after the discharge of export obligation and endorsement of transferability. It can be applicable only when the DFIA holder import first and use in the resultant product for export. There is no provision of redemption of DFIA License after the discharge of export obligation. Once the import goods are covered under the description, quantity as mentioned within the overall CIF....
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....or import which is applicable to a DFIA holder. Once the DFIA is made transferable by the licensing authorities, the Petitioner is not bound to show the actual use of the imported goods in the export product and is free to import any goods covered under the description and quantity mentioned within the overall CIF value 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- (2009-14). 40. The terms 'generic inputs' and 'alternative inputs' stipulated in Para 4.1.15 of FTP are not even defined under Chapter 9 of the Foreign Trade Policy. 41. The petitioner No.1 is a DIFA transferee is entitled to import Alloy Steel Rods/Rounds/Billets and Hot Rolled/Cold Rolled Sheet/Wide Coils) covered under the DFIA's without showing actual use in the export product". 42. In view of the above discussions, the writ petition of the petitioners are allowed in part in terms of the law laid down by the Punjab & Haryana High Court in the case of Pushpanjali Floriculture Ltd. (supra) and is accordingly, disposed of. No costs." 23. In the case at hand, we observe that the respondent-company has impor....
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....w tax effect. We are conscious that in accordance with section 131BA of the Customs Act if an appeal is not filed in view of the low tax effect that would not preclude the filing of an appeal on the same subject in another year. However, in view what we have observed above, in our view that should not come in the way in view of the well settled principles reiterated in the decision of the Madhya Pradesh High Court. 27. We also note that there is a technical opinion of the Joint Director, Jawahar Customs House Laboratory opining that the walnuts may be used as a source of dietary fibre in the manufacture of biscuits/cookies and confectionery. The revenue has not brought before us any evidence/report contrary to the same. 28. The technical opinion by JNCH Lab dated 8th August, 2018 suggests that in-shell walnuts can be used as dietary fibre. The usability of walnuts in biscuits is well known. It is settled law that it would not be open to any one to take a contrary stand unless and until such technical opinion is displayed by specific and cogent evidence in the form of technical opinion. Our view is fortified by the decision of Gujarat High Court in case of Inter Continental (India....