TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 374
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....roduct their main raw materials were "Maize, Maize Starch, Tapioca Starch, Potato Starch, Modified Starches, HCI, Caustic Soda Lye, Soda Ash, Filtrate, Bentonite, Enzymes, Hypo Chloride and Sulphur etc. During the period February 2015 to July 2015, SBPL exported one of its product declaring as "Liquid Glucose Concentrate (Food Grade)" - (ITC HS Code 17023010) under the Duty Free Import Authorization (DFIA) claim wherein import item declared was "Maize (Corn) Starch" - (ITC HS Code 11081200). The export benefit was claimed under SION Entry E22 for the imports of input "Starch" under the DFIA Scheme and after verification of the appellant's claim/application; 7 DFIA Licences were granted by the DGFT, Regional Authority, Ahmedabad to the appellant. The said Licences were transferrable and have been transferred by the appellant to various parties and the same are valid and subsisting as DGFT has not cancelled the said Licences. It is the case of the department in the show cause notice dated 30-12-2016 that appellant have wrongly declared its input as 'Maize (Corn) Starch' for 'Liquid Glucose Concentrate' exported by them as it was found during investigation that actual raw material use....
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.... by the DGFT which is a competent authority to dispute the classification under the provisions of FTP and in absence of any dispute regarding classification by the DGFT and investigation as to utilization of the said licenses, customs would have no jurisdiction to demand duty from the appellant under section 28AAA of the Act. In this behalf he relied upon the following case laws: * Collector of customs, Bombay V. Sneha Sales Corporation - 2000 (121) ELT 577 (SC), * Titan Medical Systems Pvt Ltd V. Collector of Customs, New Delhi - 2003 (151) ELT 254 (SC), * Taparia Overseas Pvt Ltd V. UOI - 2003 (161) ELT 47 (Bom.), * Commissioner of Customs V. Raj Narayan Jwalaprasad - 2014 (306) ELT 592 (Guj.) * Axiom Cordages Ltd V. CC, Nhava Sheva - II - 2020 (9) TMI 478 - CESTAT - Mum * CC, Nhava Sheva - II V. Axiom Cordages Ltd - 2022 (4) TMI 791 (Bom.) 3.2 He further, relying upon the case of Axiom Cordages Ltd supra, submitted, that in absence of any appeal having been preferred by the customs against the assessment of shipping bills which has attained finality; the proceedings by way of confirmation of show cause notice by the commissioner is not legal and proper. 4. Shri Tar....
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....2 specifies glucose in both form, liquid (concentrate) form and powder form whereas E76 covers only liquid glucose. There is no dispute to the classification of export item in the present case. The dispute relates to import item-input. One of the specified import items under E22 is "Starch" whereas "Maize" is the specified import item under SION E76. Since undisputedly 'Starch slurry' is used as immediate input by the appellant in manufacturing of its export item-liquid glucose concentrate, it cannot be said that starch was not appellant's input for export item. Further 'Starch' is in turn manufactured from 'Maize' is also an undisputed fact and equally qualify to be the input for the aforesaid export item under E76. It can be seen that subsequent to the exports by the appellant, SION Entry E22 was deleted by DGFT upon recommendation of internal committee on the premise that E22 was being mis-used by the exporters. This goes on to show that earlier exporters were eligible to claim any of the inputs under the respective entries as export item-liquid glucose essentially remained the same under both the entries. The case of the department is that since 'starch' is more commercially vi....
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....5) ELT 62, Considering the ratio of the above decisions of Tribunal, denying the benefit under DFIA on the ground that 'Starch' is not the original input and that 'Maize' is the original input which alone is eligible for the benefit of DFIA is bereft of any legal basis. 5.3 As regards, jurisdiction of customs to demand duty from the appellant invoking section 28AAA of the Act, it is undisputed fact that all the 7 DFIA licences were granted by the DGFT are valid and subsisting and further no proceedings for cancellation or suspension of any of these authorizations have been initiated by the DGFT. It thus follows that DGFT which is the proper authority to determine classification of goods under DFIA claim has not disputed and has accepted the classification of import item under E22 of SION. Further, considering the above analysis, appellant has correctly classified its product under SION E22. In the circumstances, finding of the commissioner that appellant resorted to mis-declaration and suppressed facts cannot be sustained. Further, in absence of any investigation by customs as regards utilization of the said 7 DFIA licences; section 28AAA of the Act cannot be pressed into service....