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TMI Blog2019 (3) TMI 1449X X X X Extracts X X X X X X X X Extracts X X X X ..... of ITC (HS) Numbers, we find that the Hon.Tribunal (Mumbai) in the case of USMS Saffron Co [2015 (11) TMI 820 - CESTAT MUMBAI] has held that the ITC (HS) number is not a criteria for extending DFIA benefit under custom notification No. 98/2009. We further find that neither SION nor the relevant notification specifies that relevance of ITC (HS) numbers for claiming DFIA benefits. We therefore accept the contentions of Ld. Counsel for the appellant in this regard. Thus, the imported goods walnut in shell is covered under the description of relevant food flavor/flavouring agent/flavor improvers and dietary fibre as claimed by the appellant. The denial of exemption is not justified - appeal allowed - decided in favor of appellant. - C/30067/2019 - A/30410/2019 - Dated:- 25-3-2019 - Mr. M.V.Ravindran, MEMBER (JUDICIAL) AND Mr. P. Venkata Subba Rao, MEMBER (TECHNICAL) Mr J.C. Patel, Mr Sudhakaran, Challa, Adv for the Appellant. Mr Mir Anwar Mohiuddin A.R. for the Revenue ORDER This appeal is directed against Order-in-Appeal No. HYD-CUS-000-APP-085-18-19 dated 11.02.2019. 2. The issue that falls for consideration in this appeal is whether the appellant is eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the exemption sought; that the judgement of the Hon ble Bombay High Court in the case of A.V. Industries Vs. UOI 2005 (187) ELT 9 Bom was relevant in this aspect; that in the case of USMS Saffron Co. Vs. CC, ACC, Mumbai in Final Order No.A/3267/15/CB dated 30.09.2015 it has been held by the Hon ble Tribunal that as long as goods imported fell within the description of goods described in the DFIA, exemption from duty should be extended ; that in the said case saffron was permitted to be cleared under DFIA against goods viz., food flavor specified in the DFIA; that the Hon ble Tribunal Hyderabad in appellants own case vide Final Order No. A/31757/2017 dated 06.11.2017 held that there was no reasons why apple juice concentrate was not includible within the description of goods viz., fruit juice/pulp/puree specified in the DFIA and further that walnuts in shell are not specified among the inputs in Para 4.3.2 of HBP 2009-14, as a result of which correlation of goods imported within respect to technical specification, quality, characteristics with the input goods used in the export product was not required to be verified as has been stated in CBEC Circular No. 46/2007 and DGFT Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered to be dietary fibre constituted a mere 3.8-6.1 gms of 100 gms of edible portion of walnut. The goods in this case is in shell. Therefore it cannot be said that walnuts in shell could be treated and equate to the description of dietary fibre. The judicial decisions relied upon the appellants, which are found to be passed in relation to the question of actual user conditions, which aspect is not in dispute in the instant appeal and therefore not considered it necessary to examine the ratio of them to the facts of the instant appeal case. 6. The Ld. Counsel for the appellant more or less reiterate the submissions made in the appeal. According to the Ld. Counsel, the Commissioner (Appeals), basically rejected the appeal mainly on two grounds. That the imported goods Walnuts in shell is not covered under the description of relevant food flavor/flavouring agent/flavor improvers and dietary fibre. The ITC (HS) Numbers for the Walnuts is specific and falls under CTH No. 08023100 whereas the ITC HS Codes specified by the licensing authorities as 13000000 and 2304090 respectively. The language of notification is specific and unambiguous that the benefits of exemption from customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in the case of Global Exim Vs. UOI in WP No. 15132 of 2018 passed by the Hon ble Madhya Pradesh High Court and in the case of Pushpanjali Floriculure Ltd., Vs. UOI in CWP No. 12647 of 2016 by the Hon ble Punjab Haryana High Court. 8. On the contra, the departmental representative for the revenue reiterates the findings of the Commissioner (Appeals) stating that it is correct in coming to a conclusion in denying the benefit of notification no. 98/2009-Cus dated 11.09.2009. 9. We have heard both the parties and carefully perused the DFIA license and relevant Custom notification No. 98/2009-Cus dated 11.09.2009 and other relevant documents submitted in the appeal and additional compilation presented during the course of argument. 10. In the instant case, the issue is whether Walnuts in shell is covered under the description of input entries relevant food flavor/flavouring agent/flavor improvers and dietary fibre and therefore can be permitted for duty free clearance against a transferable DFIA issued against export of Biscuits (SION E-5). There is no dispute that goods exported are Biscuits and are covered by SION E-5. The said SION E-5 inter alia permit duty free impo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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