2010 (8) TMI 285 - AT - Customs

DGFT - advance licence under Customs Notification No. 203/92 - contention of the DR that the licence granted by DGFT is not valid is without any basis - licence granted by the DGFT is in lieu of the old licence which is a valid licence - condition of nexus was not mentioned in the new licence Held that - DGFT did not deny that no licence is issued or the licence is forged the licensing authorities have the final say in the licensing matters and customs cannot go beyond the scope of licence as held by this Tribunal in the case of Hico Enterprises

Summary

Issues involved:
Import of Polyester Woven Fabrics under duty free clearance, validity of the license, nexus between imported material and goods exported, appealability of adjudicating authority's decision, interpretation of Customs Act.

Analysis:

1. Validity of License and Nexus Requirement:
The case involved the import of Polyester Woven Fabrics (PWF) under duty free clearance claimed by the respondents. The license in question was a duplicate one issued by the DGFT, transferable and revalidated. The issue arose regarding the nexus between the imported material and the material used in the manufacture of the goods exported. The Assistant Commissioner noted discrepancies and endorsed that the license was not valid for the item imported. However, the respondents argued that the fabric imported was indeed synthetic material, as confirmed by technical opinions and DGFT clarifications, which aligned with the requirements for duty free clearance under Notification No. 203/92. The Tribunal found that the respondents had fulfilled the nexus requirement by importing synthetic material as per the license conditions and upheld the duty free clearance.

2. Appealability of Adjudicating Authority's Decision:
The Revenue contended that the Assistant Commissioner's endorsement on the Bill of Entry was a query and not a final order, hence not appealable. However, the Tribunal referred to Section 128 of the Customs Act, which allows appeals against decisions taken by the adjudicating authority. The Tribunal concluded that the endorsement made by the Assistant Commissioner was conclusive in nature, making it an appealable order. Therefore, the Commissioner (Appeals) had the authority to entertain the appeal based on the adjudicating authority's decision.

3. Interpretation of Customs Act and Licensing Authorities' Role:
The Tribunal analyzed the provisions of Section 128 of the Customs Act, emphasizing that any decision by the adjudicating authority is appealable. It also highlighted that licensing authorities have the final say in licensing matters, and customs authorities must adhere to the scope of the license. The Tribunal referenced precedents to support the argument that the licensing conditions were met by the respondents in this case. Ultimately, the Tribunal upheld the Commissioner (Appeals) decision, stating that the respondents had fulfilled the requirements for duty free clearance under the relevant notification.

In conclusion, the Tribunal rejected the Revenue's appeal, affirming the duty free clearance of Polyester Woven Fabrics by the respondents based on the fulfillment of licensing conditions and the nexus between the imported material and the goods exported. The judgment emphasized the appealability of the adjudicating authority's decisions, the role of licensing authorities, and compliance with Customs Act provisions in import matters.