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2024 (7) TMI 78 - HC - CustomsExistence of substantial questions of law or not - Clearance of consignments of Sweet Whey powder (ITCHS Code-0404) duty free against the entry Leavening Agent mentioned in the duty free import authorization licence issued to the exporters against export of biscuits - clearance permissible under the duty free import authorization licence issued by the Director General of Foreign Trade (DGFT) or not - HELD THAT - Dr. G. Subrahmanyam Professor Department of Biosciences and Bioengineering has opined that Sweet Whey powder cannot be used as a leavening agent. Again that would be deciding a question of fact and no substantial questions of law would arise. Dr. G. Subrahmanyam also is not certain whether Sweet Whey powder could be used as a leavening agent. He further states that it does not have the same effect as whey protein concentrates. That is not the subject matter of dispute and by saying it may not have the same effect which would only mean that it could be used but may not be so effective. No substantial questions of law arise - appeal dismissed.
Issues:
1. Interpretation of duty free import authorization license for Sweet Whey powder. 2. Reliance on expert opinions versus own admissions and unretracted statements. 3. Consideration of Sweet Whey powder as a leavening agent under duty free notifications. 4. Use of Sweet Whey powder as a leavening agent based on various evidence. 5. Opinions of Dr. G. Subrahmanyam regarding the primary use of Sweet Whey powder. Analysis: Issue 1 - Interpretation of duty free import authorization license for Sweet Whey powder: The appellant challenged an order by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) regarding the import of Sweet Whey powder against a duty free import authorization license. The tribunal found the import permissible under the license issued by the Director General of Foreign Trade (DGFT). The appellant raised substantial questions of law regarding the interpretation of the license, questioning the tribunal's reliance on expert opinions over cogent evidence. Issue 2 - Reliance on expert opinions versus own admissions and unretracted statements: The appellant contested the CESTAT's decision to allow the appeal based on purported expert opinions, disregarding the appellant's own un-retracted admission. The tribunal's reliance on expert opinions regarding the usage of Sweet Whey powder as a leavening agent was questioned, especially in light of an opinion from Dr. G. Subrahmanyam stating that Sweet Whey powder may not have the same effect as whey protein concentrates. Issue 3 - Consideration of Sweet Whey powder as a leavening agent under duty free notifications: The tribunal concluded that Sweet Whey powder could be considered a leavening agent based on various evidence presented. The appellant raised questions regarding the tribunal's interpretation of duty free notifications and the applicability of Sweet Whey powder under such notifications. Issue 4 - Use of Sweet Whey powder as a leavening agent based on various evidence: The tribunal considered evidence, including a communication from the Deputy Director General of Foreign Trade and minutes of a meeting by a Norms Committee, suggesting that Sweet Whey powder could be used as a leavening agent. This evidence supported the import made by the respondent using the duty free import authorization license. Issue 5 - Opinions of Dr. G. Subrahmanyam regarding the primary use of Sweet Whey powder: Dr. G. Subrahmanyam's opinion was brought to attention, stating that Sweet Whey powder may not be primarily used as a leavening agent. However, the opinion also mentioned that Sweet Whey powder could be used as a leavening agent, albeit potentially less effectively than whey protein concentrates. The court found no substantial questions of law arising from this opinion. In conclusion, the High Court dismissed the appeals, emphasizing that the questions raised did not amount to substantial questions of law, particularly in light of the evidence presented and expert opinions considered.
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