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TMI Blog2017 (9) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the Respondents are liable to import Lactose against DFIA licence when the same was admittedly not used as an ingredient in the export product?" The Respondents (Appellant before CESTAT) had filed exbills of entry seeking clearance of lactose against Duty Free Import Authorization licence (for short "DFIA Licence") 0310597347 dated 18th October 2010 issued against export of biscuits and against DFIA licence No.0310662278 dated 25th October 2010 against export of Metamitron. Sugar is permissible as one of the input allowed to be imported against the export of biscuits under Standard Input Output Norms (for short "SION") vide Serial No.E5 of (SION). The norms do not refer to any particular category of sugar and it has been the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20th December 2007 and DGFT's Policy Circular dated 6th January 2009. The DGFT Policy Circular dated 24th March 2009 gave the exporter flexibility to import the alternative input/product mentioned in the SION. The licence being issued prior to the amending Circular dated 31st January 2011 made the said circular inapplicable and the import of lactose should be allowed under the DIFA licence. This plea of the Respondents was not accepted by the Adjudicating Authority, who held that the Respondents were not liable to import lactose in terms of the DGFT Circular dated 31st March 2011, as relevant date for determining the applicability of the licence is the date of the Bill of Lading/Airway Bill and therefore the Policy Circular which was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 25th October 2011 issued against export of Metmitron is definitely not restricted by the Circular dated 31st January 2011. The CESTAT accordingly, held that the Respondents are entitled to the benefit of the Notification No.98/2009 - CUS in terms of the DFIA presented to the Customs and set aside the order of the Adjudicating Authority, Commissioner of Customs (Appeals). The Appellant being aggrieved by the impugned order has preferred the present Appeal. 2. Mr. Jetly, learned Counsel for the Appellant has submitted that the impugned order has arrived at an erroneous finding by placing reliance upon the judgment of the Madras High Court in the case of Hoewitzer Organics Chemical Ltd Organic Chemicals Co. (Supra), as the facts therei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1997 (90) E.L.T 22 (Bom.), paragraph 9 reads thus: "Considering the aforesaid paragraphs of the Import and Export Policy, it is apparent that to the Petitioners quantity based Advance Licence was given on the condition of fulfilling their export obligations are stated in the Advance Licence. With regard to export there is no dispute. Paragraph 51 of the Export and Import Policy specifically provides that in respect of quantity based Advance Licences for which standard inputoutput norms have not been published, the quantitative norms will be as specified by the competent authority. On the basis of the said Policy after considering the Petitioners Application and after verifying the facts from them the Petitioners were given Advance Lice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des that where norms are not fixed the quantity norms will be as specified by the competent authority and in the present case the Competent Authority after considering the Petitioners application has granted Advance Licence in September, 1993. That licence could not be modified on the basis of the norms passed on 20th January 1995. This would be totally arbitrary action. That norms cannot have any retrospective effect so as to adversely affect the rights granted to the Petitioners under Licence. The norms prescribed will take effect only from the date of its publication i.e. from 20th January 1995 and not from the earlier date." 4. Reliance is also placed upon the judgment of the Supreme Court of India in S. B. International Limited V/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nia Fisheries (Supra) which will apply to the facts of the present case. In a recent judgment of this Court in Commissioner of Customs (Export) V/s. USMS Saffron Co. Inc. reported in 2016 (344) E.L.T 161 (Bom.), it was held it is the DFIA Licence in question is material and where the DFIA does not contain any entry restricting saffron and the Licence Authority did not deem it proper to impose any liability, there was no violation of any of the conditions of the DFIA and the Notification No.98/2009 allowing the duty free import is applicable. In the present case it is an admitted fact that the DFIA Licence bearing endorsement of transfer was issued prior to the issuance of the Circular dated 31st January 2011 and hence, the Notification No.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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