TaxTMI 
TaxTMI 
2025 (11) TMI 1375
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....3.2023 Order-in-Original No.10/2023-Gr.1 10.03.2023 Order-in-Original No.12/2023-Gr.1 10.03.2023 Order-in-Original No.13/2023-Gr.1 10.03.2023 Order-in-Original No.14/2023-Gr.1 10.03.2023 It is to be noted that the impugned orders are addressed to both the petitioners herein viz., M/s.Parry Enterprises India Limited and M/s.Fame Shipping Agency. 3. The first writ petitioner is engaged in the business of Importing and Trading of Wheat Gluten and the second writ petitioner is the licensed Custom Broker of the first petitioner (Importer). For the purpose of easy narration, the petition in W.P.No.17912 of 2023 is taken as a lead case. 4. The case of the petitioner is that during the course of business, the petitioner purchased Duty Free Import Authorisation (in short 'DFIA') dated 14.08.2012 issued by the Director General of Foreign Trade for the policy period 2009-2014. The further case of the petitioner is that the Central Government through a notification dated 11.09.2009 exempted the materials imported into India against DFIA issued in terms of Paragraph Nos.4.2.1 and 4.2.2 of the Foreign Trade Policy from the whole of duty of Customs leviabl....
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....of Customs reported in 2014 (310) ELT 583 (Tri-Ahd.) and requested the respondent to drop the proposal contained in the six show cause notices. It is alleged that the respondent without considering the same, has passed the impugned orders and the same have been put to challenge in all these writ petitions. 8. Counter affidavit has been filed by the respondent in each writ petition. The respondent has taken a stand that sufficient opportunity was given to the petitioner to defend themselves and it was found that the imported Vital Wheat Gluten was not covered under DFIA Licence and that the petitioner is not eligible to claim exemption from the payment of the duty availed by them. The respondent has taken a further stand that the DFIA Licence only allows import of Wheat Flour and whereas the import of Wheat Gluten as an alternative input is not allowed under DFIA authorisation issued for export of biscuits. The further stand taken by the respondent is that the petitioner is not entitled for the duty exemption benefit claimed under notification dated 11.09.2009 and therefore, the petitioner is bound to pay the duty along with interest and also penalty, and the goods are also liabl....
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....he petitioner has challenged the very authority and the jurisdiction of the respondent who has passed the orders by discarding the findings of the CESTAT on the very same issue. The bar in entertaining the writ petition is more in the nature of self-imposed restrictions and while exercising jurisdiction under Article 226 of the Constitution of India, there is nothing called as absolute bar, considering the numerous power that is vested with the Court by the Constitution. 14. The main issue that is involved in the present writ petitions is that the impugned orders passed are without jurisdiction, since the respondent is bound by the order passed by the CESTAT on the same issue. 15. For this purpose, it will be relevant to take note of the order passed by CESTAT, Ahmedabad. in Uni Colloids Impex P. Ltd., Vs Commissioner of Customs, Ahmedabad reported in 2014 (310) E.L.T. 583 (Tri. -Ahmd.). The relevant portions are extracted hereunder : "Whether Wheat Gluten is Wheat Flour: 9. So far as the issue as to whether or not the item Amygluten 160 (Wheat Gluten) is wheat flour, it is seen that the issue was already decided in favour of the appellant by the Commissione....
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....he licensing authorities have correctly issued the DFIA to that extent. The department is also not disputing this aspect except for the sole contention that the ITC (HS) number of wheat gluten flour is not mentioned in the DFIA. The appellant has relied upon decisions of Coordinate Benches of the Tribunal on the very same issue. The Tribunal on all these occasions has taken a consistent stand by holding that Wheat Gluten is covered by the description of Wheat Flour. As such no different view can be taken and are bound to follow the ratio laid down in that case as judicial precedent. That for claiming DFIA benefit, under Notification No.19 of 2015, the appellant is only required to satisfy the description, value and quantity mentioned in the DFIA. The imported goods are covered within the description, value and quantity of the DFIA. Therefore, the submission that the appellant has not satisfied with the conditions of Notification is not correct. There is no such condition either in the policy or in the procedure or in the Notification No.19 of 2015 which stipulates that ITC (HS) No. is a criteria for claiming DFIA benefits as held by this Tribunal in the case of USMS Saffron Co. Inc....
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....en Flour is a specified item under Para 4.30 of FTP. It is settled law that Board Circulars are binding on the department. Further DGFT Policy Circular 72 of 2008 allows import of alternative inputs either used or capable of using in the export goods, In this case, it is evident from the DFIA that the Exporter has used both Wheat Gluten as well as Wheat Gluten Flour in the Export goods i.e., Biscuits. 4.3 With respect to the actual use of goods in the export product for claiming DFIA benefits, it has already been answered by the Hon'ble Bombay High Court in the case of Shah Nanji Nagsi Export Ltd. v. UOI - 2019 (367) E.L.T. 335 (Bom.). This Tribunal has followed the said order in the appellant's own case (supra)." 17. During the course of arguments, the learned Senior Panel Counsel appearing on behalf of the respondent brought to the notice of the Court the Policy Circular No.13 dated 31.01.2011 and submitted that the same has replaced the earlier circular dated 11.09.2009. The subsequent circular dated 31.01.2011 was in fact taken into consideration in the above judgment and only thereafter, the findings were rendered. 18. In view of the above, the consisten....
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....ry for this Court to further digress on this issue, since the Apex Court had made it very clear that the Assessing Officer is bound by the findings rendered by CESTAT. Useful reference can be made to the judgment of the Apex Court in Union of India Vs Kamlakshi Finance Corporation Ltd., reported in 1991 (55) E.L.T. 433 (S.C.). The relevant portion is extracted hereunder : "6. Sri Reddy is perhaps right in saying that the officers were not actuated by any mala fides in passing the impugned orders. They perhaps genuinely felt that the claim of the assessee was not tenable and that, if it was accepted, the Revenue would suffer. But what Sri Reddy overlooks is that we are not concerned here with the correctness or otherwise of their conclusion or of any factual mala fides but with the fact that the officers, in reaching their conclusion, by-passed two appellate orders in regard to the same issue which were placed before them, one of the Collector (appeals) and the other of the Tribunal. The High Court has, in our view, rightly criticised this conduct of the Assistant Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the ord....