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TMI Blog2015 (11) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... sable, 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. - APPEAL NO. C/85169/15 - A/1807/15/SMB - Dated:- 26-6-2015 - SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) For the Petitioner : Shri Mihir Mehta, Advocate For the Respondent : Shri M.K. Mall, Asst. Commr. (A.C.) ORDER Per: Anil Choudhary: 1. The appellant-importer is in Appeal in respect of a live consignment. They imported a consignment of 300 MT of Boric Acid vide B/E No. 6321863 dated 02.8.2014 seeking duty free clearance against a transferable DFIA (Duty Free Import Authorisation) for non-insecticidal purpose. The DFIA in question was issued by DGFT against export of glass vials/phials etc., to Piramal Glass Ltd., who in turn obtained transferability endorsement after the completion of export obligation and thereafter transferred the DFIA to the appellant in terms of the provisions of Foreign Trade Policy. The said DFIA inter alia allows Boric Acid as one of the input item required for use in export product without stip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic acid. The Commissioner (Appeals) accepted the contention that import permit is not required for import of boric acid for non insecticidal use. The department challenged the said order by filing an appeal before the CESTAT, Mumbai. The Departments appeal has been rejected by Division Bench of this Tribunal vide final order dated 03.12.2010 holding that the importer is not required to obtain any permission from the Ministry of Agriculture for import of boric acid for non insecticidal use. 3.3 The appellant imported another consignment comprising of 100 MTS of Boric acid. The claim for importation, without import permit was again rejected by the assessing authority. The rejected order passed by the Joint Commissioner was challenged before the Commissioner (Appeals). The Commissioner (Appeals), however, vide his Order-in-Appeal No. 259 (Gr.VII-I)(JNCH)/EXP-14 dated 17.09.2010 rejected the appeal. The appellant challenged the order passed by the Commissioner Customs (Appeals) by filing an appeal (Appeal No. C/641/10-Mum) before the CESTAT, Mumbai. 3.4 Vide the final order A/05/14/SMB/C-IV dated 19.12.2013, on the appeal filed by the appellant, this Tribunal held that import of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner (Appeals) has failed to consider by putting heavy reliance on the decision of the Division Bench of the Hon'ble High Court, which was rendered in respect of the imports of Boric Acid on payment of duty, and were not against any DFIA as in the case of the appellant and as such the facts are distinguishable. Both the adjudicating authority and Commissioner (Appeals) have erred in placing heavy reliance on the Division Benchs ruling of the Hon'ble Kerala High Court dated 3.6.2014. The fact of import against DFIA makes the import immune for the requirement of import permit. 3.10 Once the DFIA licence is issued there is no need to obtain any other licence as provided in para 4.1.13(d) of the Policy read with the Policy Circular dated 16.3.2009. The said para in the Policy states that import of restricted items shall be allowed in advance authorization/DFIA. The same have been further clarified in the Policy Circular No. 70/08 issued by the DGFT, that once the DFIA is issued for importing the item listed in the DFIA, the same can be imported against the transferred DFIA, without the requirement of Licence/authorization unless otherwise mentioned under the said notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contended that the reliance placed by the Revenue on the ruling of the Apex Court in the case of Sheikh Mohd. Omer Vs. Collector of Customs, Calcutta 1983 (13) ELT 1439 (SC) to hold that the boric acid imported without the permit from the CIB RC is liable to confiscation is mis-placed as import of boric acid is neither prohibited nor restricted. As such, the learned Commissioner (Appeals) is in error in holding that the import of boric acid is liable for confiscation under Section 111(d) of the Act. 3.14 It is further contended that Section 111(d) provides for confiscation of any goods under import, contrary to any prohibition imposed by or under this Act or any other law for the time being in force. Further, prohibited goods is defined under Section 2(33) of the Customs Act, 1962, means - any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with. Thus, it is evident that unless the goods are listed as prohibited either in the FTP or under the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Insecticide Board Registration Committee under the Ministry of Agriculture. The goods are thus not notified as prohibited for imports, but import is restricted as above. 6.1 That Para 4.1.13 of FTP notified by the Central Government is relevant in this regard- Importability / Exportability of Items that are Prohibited / Restricted / STE 4.1.13 (d) Import of restricted items shall be allowed under Advance Authorisation / DFIA. 6.2 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. 6.3 No separate permit is therefore necessary for the said clearance, once DGFT has considered the eligibility for imports and after being satisfied issued the DFIA permits import of Boric Acid without stipulating any condition, to furnish any further permit, at the time of clearance under DFIA. 6.4 The learned A.R. could not show from any of the judgments relied upon, that the same were concerning imports of Boric Acid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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