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TMI Blog2018 (10) TMI 1485X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment and this Court has also carefully gone through the aforesaid judgment and the issue stands concluded, the judgment delivered in the case of M/s. Global Exim shall be applicable mutatis-mutandis in the present case also - Petition allowed. - Writ Petition No.17023/2018 - - - Dated:- 11-10-2018 - S. C. Sharma And Virender Singh JJ. For the Petitioner : Alok Barthwal For the Respondent : None ORDER Parties through their counsel. The petitioner before this Court is a Partnership Firm registered under the Partnership Act, has filed present petition being aggrieved by the action of the respondents in denying the petitioner Duty Free Import under the Transferable Duty Free Import Authorization (DFIA) under similar circumstances even though the petitioners are entitled to the benefits under paragraph 4.2.2 of the Foreign Trade Policy (2009-14) and import Whey Powder, Whey Protein Concentrates, Whey Protein Isolates covered under the description of Milk and Milk Products as well as Walnuts covered under the description of Nuts and Nut Products, Dietary Fibre, Flavours described in the DFIA of the quantity and value mentioned in DFIA. 02-At the outset le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, it is seen that the validity of the Customs Notifications which are issued by the Central Government to restrict exemption from anti-dumping duty are not under challenge in this writ petition. Therefore, we cannot direct the Commissioner of Customs at Ludhiana to grant exemption of anti-dumping duty. Consequently, the prayer in regard to exemption from anti-dumping duty is rejected. The exemption available to the petitioner under the DFIA would therefore be restricted only to the basic customs duty. 43. It is pointed out in the petition that despite absence of any power under section 5 of the FTDR Act, 1992 for any retrospective amendment, several such amendments / instructions are being issued and are being arbitrarily applied in a retrospective manner. Some notifications of such nature are already struck down such as DGFT Notification No. 4 (RE:2013)/ 2009-14 : MANU/SNTN/0311/2013 dated 18.04.2013 withdrawing deemed benefits for supplies to Non-Mega Power Projects - Hon'ble High Court of Gujarat struck down the Notification in the case of Alstom (India) Ltd. Vs. Union of India - MANU/GJ/0210/2014MANU/GJ/0210/2014 : 2014 (301) ELT 446 (Guj. Regarding DGFT Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Soda Ash by the petitioner by debiting the DFIA licence under Bill of Entry no. 7080616 dated 16.10.2014. (iv) The prayer for granting exemption, so far as anti- dumping duty is concerned, is rejected for the reasons recorded above. 03-Shri Prasanna Prasasd, learned counsel appearing for the respondent has not disputed the aforesaid judgment, however, he has informed this Court that a Special Leave Petition is pending before the Hon'ble Supreme Court of India and no stay has been granted in the matter. 04-Learned counsel for the petitioner has also drawn the attention of this Court towards a judgment delivered by the Division Bench of this Court in Writ Petition No.15132/2018 between the same parties i.e. M/s. Global Exim and Another Vs. Union of India and Others decided on 18/09/2018 and again it has been stated that the Division Bench of this Court in case of import of Bearings under the duty free import authorization has allowed the writ petition in similar circumstances. 05-Shri Prasanna Prasad has fairly stated before this Court that the aforesaid identical writ petition has been allowed and there is no Special Leave Petition preferred till date in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09-14). 8. The imported Bearings are not Engine Bearings. Para 4.36A of Hand Book of procedures reads as under :- 4.36AOnce export obligation is fulfilled and required documents as stipulated in Paragraph 4.36 above have been furnished, RA shall make authorisation transferable subject to conditions stipulated for this scheme including an endorsement on the authorisation itself as to liability of additional customs duty / excise duty in respect of imported / indigenously procured inputs, as the case may be, which have already been imported under Actual User DFIA and are sought to be transferred after fultillment of E.O. DFIA holder shall deposit additional customs duty / excise duty alongwith applicable interest as per Customs Notification in relevant head of Account of Customs Revenue i.e., Major Head 0037 Customs and Minor Head 001 Import Duties in prescribed T.R. Challan and furnish a documentary evidence to RA alongwith the application for endorsement of transferability. 9.The respondent No.3 at the time of assessment of the said BE No.6993518 dated 28.06.2018, raised the following query which is reproduced as under :- Description of Goods does not cover i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excise duty. While endorsing transferability, authorisation would bear a note as to liability of such additional customs duty / excise duty. However, in case where CENVAT facility has not been availed, exemption from additional customs duty / excise duty would be available even after endorsement of transferability on DFIA. 13.In terms of Clause 4.2.6 of the FTP, once transferability is endorsed, the authorization holder may transfer DFIA or duty free inputs except fuel and any other item(s) notified by DGFT. Meaning thereby, once the export obligation is discharged and transferability endorsement is made by the officers of the respondent No.1, the license and goods imported there under without payment of duty become freely transferable except the fuel and any other goods notified by the DGFT. 14. The petitioners purchased the DFIAs for the purpose of importing various goods covered under the description, value and quantity specified therein for trading in India. The respondent No.1 amended the Foreign Trade Policy (2009-14) by inserting a new para 4.1.15 through notification No.31 dated 01.08.2013, which reads as under :- 4.1.15Wherever SION permits use of either (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 01.08.2013 whereby para 4.1.15 was inserted stipulating only actually used inputs used in export product are eligible for import under DFIA Scheme. The said provision of para 4.1.15 shall be applicable to DFIA holder and not to DFIA Transferee. 18.It is submitted that the endorsement against bearing is mentioned as Bearing (all types other than Engine Bearings) such as ball bearing/Taper/Cylindrical/Needle Roller Bearing is the only requirement to be fulfilled. Once this is fulfilled DFIA benefit cannot be denied to the petitioners. The imported bearings are ball bearings and not Engine Bearings. 19. The petitioners submit that while import of Internal Combustion Engine Complete is provided separately against serial No.6, whereas import of Bearings (other than Engine bearings) such as ball bearings / Taper bearing / Cylindercial / Needle Roller bearings are mentioned against serial No.3 of SION C-969 against export of Agricultural Tractors. 20.The Engine Bearings are plain or sleeve bearings in contrast to roller, ball and needle bearings, called anti friction bearings, which are used where minimum lubrication is available. The goods imported are bearings (which are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 25.Shri Prasanna Prasad, learned counsel for the respondent No.3 has drawn our attention to Annexure P/9, dated 1.4.2015 and relief claimed in the writ petition and submitted that the denial / acceptance can only be done after assessment and order, which has not been done till the date, as the reply to query is pending on the petitioner's part and therefore, the petition is liable to be dismissed being premature. 26. He further submitted that the DFIA license was issued to M/s. International Tractors Ltd., Hoshiarpur, which was subsequently transferred to the petitioners by M/s. Pushpanjali Floriculture Ltd. and not by M/s. International Tractors Ltd., Hoshiarpur, transfer letter does not provide any description of earlier transferee (Annexure P/2). The petitioners on the basis of transfer letter dated 18.6.2018 by M/s. Pushpanjali Floriculture Ltd., Mumbai for import of items as per import item list (3) Bearing ie., Ball Bearing under net to net ITCHS 84822011 / 84825012 / 84824000 filed the bill of entry for import of items other than those which are not covered under Serial No.3 of the list of items submitted by the petitioners, for which Query has been raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at only those actually used inputs in the export product only shall be imported is not applicable to a DFIA transferee. Once the imported goods are covered under the description, quantity as mentioned within the overall CIF value allowed in the DFIA, irrespective of the ITC (HS) Nos, there is no necessity to satisfy the requirement of Para 4.1.15 of FTP- (2009-14) and notification No.90 dated 21.08.2014. 34.On a plain reading of para 4.1.15 abundantly makes it clear that the provisions has no application after the discharge of export obligation and endorsement of transferability. It can be applicable only when the DFIA holder import first and use in the resultant product for export. There is no provision of redemption of DFIA License after the discharge of export obligation. Once the import goods are covered under the description, quantity as mentioned within the overall CIF value allowed in the DFIA, (as amended upon competition of export), there is no necessity to satisfy the requirements of Para 4.1.15 of FTP. It is impossible to comply the condition which states that those inputs which are actually used in export product for availing DFIA exemption. 35. The Division bench ..... X X X X Extracts X X X X X X X X Extracts X X X X
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