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TMI Blog2015 (11) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... cense, as it extends the benefits of flexibility to import the alternative input/product mentioned in the SION and that appears to be the main tenor of the petitioners seeking release of the lactose stating that the clarification and the circular which were in force at the time of issuance of license will be applicable to the goods imported and not the subsequent clarifications.” Even if the actual user condition was brought in in 2011, fact remains that this condition has been deleted. The spirit of the judicial pronouncement is that the license has to be accepted as it is. And Customs cannot deny the benefit unless the DFIA is amended. Significantly, till date, the DFIA licenses have not been cancelled nor has any evidence been produced that the Customs have approached the DGFT for the same. - appellants are entitled to the benefit of Notification No. 98/2009-Cus. in terms of the DFIA presented to customs - Decided in favour of assessee. - Appeal No. C/85561/2015-Mum and Appeal No. C/88889/2013-Mum - Final Order Nos. A/1782-1783/2015-WZB/CB - Dated:- 15-6-2015 - Mr. Anil Choudhary, Member (Judicial) And Mr. P.S. Pruthi, Member (Technical) For the Petitioner : Shri Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 Heard both sides and considered the submissions. 4. The ld counsel for the appellant stated that lactose is milk sugar and covered by the entry sugar under SION. There is no basis to hold that Sugar in the SION norms refers to cane sugar alone. The circular of 2011 merely says that only cane sugar is permitted without explaining why other forms of sugar are not permitted. And the amended SION norms E 5 which substituted the entry Sugar by the entry cane sugar was issued only under DGFT Public notice No 93 dated 1.2.2012. Therefore prior to this date the policy circular relied upon by Revenue does not have the effect of amending the SION. He relied on the decision of the Madras High Court in the case of Hoeweitzer Organic Chemical Co Ltd versus DGFT 2013 (294) ELT (Mad) which held that Policy circular no 13 dated 31.01.2011 will have no effect in respect of licences already issued. The para 4.2.2b of the Policy lays down that the DFIA will be issued in accordance with Policy and procedure in force on date of issue of Authorization. 4.1 The ld counsel relied on ISI specification 1008: 20044 for Sugar Boiled Confectionery which specifies lactose as one of the optional ing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the Licensing authorities. He distinguished the facts in the present case from the facts in the case of Madras High Court judgement (supra) explaining that in the facts of the Madras High Court judgement, the license was issued prior to the change in policy and therefore it does not apply in the present case where the license was transferred after the change in policy. 6. We have carefully considered the submissions made by both sides. 6.1 The benefit of duty-free exemption available under customs notification No 98/09 under DFIA scheme has been denied primarily on the ground that the import took place after the issue of the policy circular dated 31.1.11. We note that the DFIA 0310597347 dated 18. 10. 2010 was originally issued to M/s Parle Products Private Limited against the export of biscuits in terms of SION norms E -5. The DFIA number 031066278 dated 25.10.2011 was issued to M/s Excel Crop Care Ltd against export of Metamitron. The SION No E-5 relating to biscuits was amended vide Public Notice No 93 dated 1.2.2012 by addition of note 1 which states that import of lactose is not allowed as a substitute input against import item number 2, that is cane sugar. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability of which is endorsed. It is to be noticed that the clarification issued by the Ministry of commerce dated 31.7.2008 and the DGFT policy circular dated 24.3.2009, which were enforced prior to issuance of license in question dated 15.4.2010, will be made applicable to the license, as it extends the benefits of flexibility to import the alternative input/product mentioned in the SION and that appears to be the main tenor of the petitioners seeking release of the lactose stating that the clarification and the circular which were in force at the time of issuance of license will be applicable to the goods imported and not the subsequent clarifications. This judgement referred to the decision of the Honble Supreme Court in the case of S. B. International Ltd 1996(82)ELT 164 (SC) wherein it was held that the norms applicable on the date on which the license is issued will be valid in respect of goods imported under the said license. The judgement also states that a similar view was taken by the Honble Supreme Court in the case of Jain Exports (P) Ltd. 1992(61)ELT 173(SC). In the present case the norms which existed on the date on which the license was issued allowed import of al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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