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2015 (11) TMI 1092 - AT - CustomsImport of Boric Acid - Import without production of import permit - Held that - Boric Acid is freely importable as per ITC (HS) classification 2810 0020, subject to a restriction of furnishing an import permit issued by the Central Insecticide Board & Registration Committee under the Ministry of Agriculture. The goods are thus not notified as prohibited for imports, but import is restricted - Thus, Central Government vide Para 4.1.13 (d) has stipulated that import of restricted items shall be allowed under DFIA. In the instant case, the import of Boric Acid is against DFIA issued by DGFT. No restriction can therefore come in way of allowing import of such restricted item when import is sought against DFIA Neither the goods, Boric acid, imported for non-insecticidal use under a specific DFIA license issued by DGFT are liable to confiscation, nor is any fine or penalty imposable under the Customs Act, 1962. The Ruling of the Division Bench of Hon ble Kerla High Court in 2015 (11) TMI 1027 - KERALA HIGH COURT , is held disguisable, as the matter before the Hon ble High Court was with respect to import of boric acid on payment of duty, whereas in the present case, the import is against DFIA. Thus, the impugned order is set aside. - Decided in favour of assessee.
Issues Involved:
1. Eligibility of Boric Acid import under DFIA without an import permit. 2. Applicability of DGFT Notification No. 2 (RE-2006)/2004-2009 dated 07.04.2006. 3. Confiscation and penalty under Section 111(d) of the Customs Act, 1962. 4. Relevance of prior judgments and Board Circulars. Detailed Analysis: 1. Eligibility of Boric Acid import under DFIA without an import permit: The appellant-importer sought duty-free clearance of 300 MT of Boric Acid under a transferable DFIA issued by DGFT, which did not stipulate the need for an import permit. The appellant argued that previous consignments of Boric Acid imported for non-insecticidal use had been cleared provisionally based on bonds and guarantees, as per the Bombay High Court's order. The appellant contended that the DFIA allowed the import without requiring further permits, supported by earlier Tribunal decisions in their favor, which ruled that no permission from the Ministry of Agriculture was necessary for non-insecticidal use. 2. Applicability of DGFT Notification No. 2 (RE-2006)/2004-2009 dated 07.04.2006: The department's case was based on the requirement of an import permit under the ITC (HS) classification No. 28100020 and DGFT Notification No. 2, which mandates a permit from the Central Insecticide Board & Registration Committee (CIB&RC). The adjudicating authority and Commissioner (Appeals) relied on judgments from the Kerala and Kolkata High Courts, which upheld the necessity of an import permit for Boric Acid. However, the appellant argued that these judgments were distinguishable as they did not involve imports under DFIA. 3. Confiscation and penalty under Section 111(d) of the Customs Act, 1962: The Additional Commissioner ordered the confiscation of the consignment and imposed a penalty, citing the absence of the required import permit. The appellant challenged this, arguing that Boric Acid was not prohibited but restricted, and the DFIA scheme exempted them from obtaining a separate import permit. They contended that the goods were not liable for confiscation as per Section 111(d), which applies to prohibited goods, whereas Boric Acid was only restricted. 4. Relevance of prior judgments and Board Circulars: The appellant referenced multiple Tribunal decisions and a Board Circular clarifying that substances listed under the Insecticides Act for non-insecticidal use did not require an import permit. The appellant argued that the Kerala High Court's decision was not applicable as it did not pertain to DFIA imports. The Tribunal agreed, noting that the DGFT had already considered the eligibility for imports under DFIA, and no further permit was necessary. Conclusion: The Tribunal held that Boric Acid imported for non-insecticidal use under a specific DFIA license issued by DGFT was not liable for confiscation, nor was any fine or penalty imposable under the Customs Act, 1962. The Tribunal distinguished the Kerala High Court ruling, noting it involved duty-paid imports, not DFIA. Thus, the appeal was allowed, and the customs authority was directed to release the goods within seven days. Order: The appeal is allowed with consequential reliefs. The customs authority is directed to release the goods to the appellant forthwith, imported under Bill of Entry No. 6321863 dated 02.08.2014, within a period of seven days from receipt or production of a copy of this order.
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