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TMI Blog2015 (11) TMI 1498X X X X Extracts X X X X X X X X Extracts X X X X ..... toms. The appellant has merely sought a statement to be issued by Customs to the DGFT certifying that the admissibility of import of Boric Acid against the DFIAs licenses remained in litigation. In fact, the Commissioner (Appeals) acknowledges this position regarding the litigation. - request made by the appellant to the Customs Department is very legitimate. The request is not for revalidation of Licenses by Customs, but only a certificate to be issued to DGFT confirming the sequence of events from the date of first refusal of duty free clearances of imported Boric Acid till the date when the Customs started finding Bills of Entry and releasing PD Bonds/Bank Guarantees. This factual certificate will enable the appellant to approach the DGF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Commissioner (Appeals) order. The High Court allowed the provisional release on Bond and Bank Guarantee and with directions to the department to get stay from CESTAT on the Order passed by Commissioner (Appeals). However both the stay application and the main appeal were dismissed by CESTAT. The main appeal was dismissed by CESTAT vide Order No. A/527/10/CSTB/C-II dt. 3.12.2010. Another consignment of Boric Acid was imported by the appellant vide Bill of Entry No. 712175 dt. 28.6.2010 under transferable DFIA Nos. 0310485994 dt. 11.9.2008, 0310486783 dt. 17.9.2008 and 031048840 dt. 30.9.2008. However, duty free claim of appellant was again rejected. The matter again went up to the Tribunal who passed an order favouring the appellant vide o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested the department for issue of a certificate to DGFT confirming the factual position so as to enable them to apply to the DGFT for revalidation of the DFIAs in terms of Para 2.13.1 of the Handbook of Procedures of DGFT Ministry of Commerce. The department rejected their request. In appeal it was held by the Commissioner (Appeals) that litigation in matter of Boric Acid has not been finally decided as this Commissionerate has decided to file an appeal before Honble High Court against the CESTAT Order No. A/05/14/SMB/C-IV dated 19.12.2013, and that as per para 2.13 of Handbook of Procedure, Import Authorization is revalidated by the concerned RA of DGFT and this office has no role in revalidation of import licenses and hence your request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Para 2.13.1 of the Handbook of Procedures which states that However, revalidation of freely transferable Authorization/duty credit scrips and stock and sale Authorization shall not be permitted unless validity has expired while in custody of customs authority/RA. According to Ld. AR, the DFIAs were not in the physical custody of the department and therefore revalidation of DFIAs cannot be permitted. In his written submissions, he has raised doubts regarding evidence of transfer of licences to the appellant and amount of value transferred as well as the validity of licenses on the date of transfer to the appellants. According to him, only DGFT has proper jurisdiction to revalidate licenses. 6. We have carefully considered the submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entially, their request to the department was that a certificate be issued to DGFT confirming the prolonged litigation with Customs so as to enable them to get the licenses revalidated in terms of Para 2.13.1 of Handbook of Procedures. But their request was rejected by the Assistant Commissioner vide his letter dt. 28.5.2014 and the Commissioner (Appeals) upheld the decision of the Assistant Commissioner. While rejecting the request the Assistant Commissioner mentioned that the department has decided to file the appeal before the Honble High Court against CESTAT Order No. A/05/14/SMB/C-IV dt. 19.12.2013. The Assistant Commissioner did not appreciate the real issue. To us, the issue is very clear. The real issue is not the admissibility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... censes for debit when the department continued to refuse duty free import against the said Licenses. It can hardly be imagined that Para 2.13.1 would require physical custody with the Customs. Commissioner (Appeals) himself held in another case (Pushpanjali) that once matter is in litigation it is not in the hands of the importer or the Customs Authorities to finalize the issue within the time frame of the licenses. In fact, the licenses remained in constructive custody of customs because customs refused to debit the licenses for duty free import of such goods by all importers. 11. The request made by the appellant to the Customs Department is very legitimate. The request is not for revalidation of Licenses by Customs, but only a certi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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