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TMI Blog2010 (8) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 17-8-2010 - Shri Ashok Jindal, Member (J) REPRESENTED BY : Shri B.P. Pareira, JDR, for the Appellant. S/Shri J.H. Motwani with Prakash Shah, Advocates, for the Respondent. [Order]. - Revenue has filed this appeal. 2.The respondents imported 131 packages of Polyester Woven Fabrics (PWF) and filed ex-bond Bill of Entry for its clearance. They claimed duty free clearance of the same under Notification No. 203/92-Cus. dated 19-5-1992 by submitting Release Advice issued by Mumbai Custom House against Value Based Advance Licence No. 0510233922 dated 5-1-2009 issued in lieu of the original licence No. 2270714 dated 9-1-1995 issued in the name of M/s. M.S. Shoes East Ltd. 2.1 On scrutiny of the licence, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the condition of nexus between the imported material and the material used in manufacture of the goods exported has been deleted. He further submitted that the material imported by the respondent is a polyester fabric, which is not being used in the manufacture of shoes. Hence, the respondents are not entitled for duty free clearances taking the benefit of Notification No. 203/92 dated 19-5-1992. He also submitted that the department vide letter dated 30-3-2009 asked the DGFT whether the clearance of the goods should be allowed without ascertaining the nexus between the goods imported and the export product? The DGFT replied the same on 2-4-2009 stating that the condition regarding nexus is applicable. 4.On the other hand, Shri Prak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import duty free giving the benefit of Notification No. 203/92. He also submitted that the department did not take any objection before the Commissioner (Appeals) that the endorsement by the adjudicating authority is not an appealable order and the clarification has been sought by the department from DGFT. He also submitted that the department has taken the clarification after passing the impugned order and the letter written by the department and their reply by the DGFT are not placed before this Tribunal for consideration and the same cannot be entertained in absence of any evidence before this Tribunal. 5.Heard both sides. 6. On careful examination of the case records and submissions made by both the sides, I find that the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or decision taken by the adjudicating authority is an appealable before the Commissioner (Appeals). From perusal of the endorsement made by the adjudicating authority in the Bill of Entry that "the licence granted by the DGFT is not valid and the description does not tally with the item imported i.e. Polyester Woven Fabrics" is conclusive in nature, hence, it is the decision taken by the adjudicating authority as no explanation has been sought from the importer with regard to the validity of licence or nexus. Hence, it is an appealable order. I do not find that the Commissioner (Appeals) has made any error in entertaining the appeal. The appeal on this ground is not maintainable. 10. The contention of the DR that "the licence gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the same licence, it has been categorically held that polyester woven fabrics is a synthetic material and are used in manufacturing of synthetic footwear and the same has been confirmed by the DGFT in their letter dated 10-6-2009. It is well settled law that 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 vide order No. M/1152/2005/WZB/C-I dated 20-9-2005 [2005 (189) E.L.T. 135 (Tribunal)]. As per the licence, the respondents are entitled to import synthetic material and they have imported polyester woven fabrics, which is nothing but synthetic material as per the opinion of the Joint Director, New Custom House ..... X X X X Extracts X X X X X X X X Extracts X X X X
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