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TMI Blog2022 (9) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... of the DFIA having been approved and effected by the licensing authorities, customs authorities cannot impose restrictive condition on the transferee to deny the exemption sought. The technical opinion by JNCH Lab dated 8th August, 2018 suggests that in-shell walnuts can be used as dietary fibre. The usability of walnuts in biscuits is well known. It is settled law that it would not be open to any one to take a contrary stand unless and until such technical opinion is displayed by specific and cogent evidence in the form of technical opinion. Whether the impugned order passed after ten months from the date of conclusion of hearing is justified? - HELD THAT:- It is observed that there is no ground taken with respect to the said question. Secondly, there is no statutory limitation prescribed under the Customs Act to pass any order within any certain period of limitation after the conclusion of the hearing. Therefore, the said question, does not raise any question of law let alone a substantial one. The adjudicating authority has discretion with respect to the security and conditions that he may require while provisionally releasing the seized goods. It is settled law that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total value of the seized goods and furnishing bank guarantee of Rs.18,27,423/- with self-renewal clause and submission of undertaking/bond that respondent-importer shall pay the duty, fine and/or penalty as may be adjusted by the adjudicating authority. 5. Being aggrieved by the said order of conditional provisional release passed by the adjudicating authority, the respondent filed a customs appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Mumbai. The CESTAT vide its order dated 11th September, 2020 observed that prima facie the imported in-shell walnuts were not liable for confiscation and set aside the order dated 28th June, 2019 of the adjudicating authority with a direction for unconditional release of the seized goods. The CESTAT further directed the return of the bank guarantee and the bond furnished earlier by the respondent-company. 6. Against the aforesaid order of the CESTAT, the Revenue is in appeal proposing the following questions as substantial questions of law for determination of this court :- a. Whether the CESTAT was right in setting aside the condition imposed by the adjudicating authority for permitting provisional rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Private Limited which were liable for confiscation were rightly seized under section 110. He draws the attention of this Court to section 111(o) of the Customs Act to submit that the said goods are liable for confiscation under the said provision. 10. With respect to the decision of the Madhya Pradesh High Court in the case of Global Exim and ors. Vs. The Union of India and ors. (supra), learned standing counsel submits that the said decision has not been accepted by the department but was not appealed against only on the ground of monetary limits fixed by the CBEC (now CBIC). He draws the attention of this court to section 131BA of the Customs Act to submit that non-filing of an appeal on the ground of low tax effect does not mean that the Department has acquiesced on the issue. With respect to the decision in the case of Uni Bourne Food Ingredients LLP (supra) he would submit that the department has not accepted the said decision and has filed an appeal before the High Court of Telangana. 11. Learned standing counsel further submits that the DYCC Report relied upon by the Tribunal does not represent the correct technical view in as much as although DYCC, Nhava Sheva h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been permitted subject to a bond of Rs.36,54,847/- and bank guarantee of Rs.18,27,423/- and an undertaking to pay the duty/penalty adjudged by the adjudicating authority. There is no dispute that the seized walnuts held to be not liable for confiscation and imported under other confectionery ingredients, nut and nut products are the same as the walnuts imported as dietary fibre. 16. We observe that the seized walnuts in-shell were allowed to be cleared against import item of nut and nut products and dietary fibre , following with the decision of the Madhya Pradesh High Court in the case of Global Exim and ors. Vs. The Union of India and ors. (supra) and the Tribunal decision in the case of Uni Bourne Food Ingredients LLP Vs. Commissioner of Central Excise Hyderabad-II (supra) . The Tribunal had also placed reliance on the opinion given by the Joint Director, Jawahar Customs House Laboratory vide report dated 8th / 27th August, 2018. The appellant has not disputed the said technical opinion but only stated that the said authority has expertise in chemical analysis of goods but do not have expertise or mandate on food and nutrition science and that opinion appears bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 of Punjab Haryana High Court in the case of Pushpanjali Floriculture Ltd., V/s. Union of India, 2016 (340) ELT 0032 (P H) held that, from the product which already stands exported, the inputs used in the manufacture of thereof should somehow be extracted, and only such inputs be allowed to be subsequently imported into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Chapter 9 of the Foreign Trade Policy. 41. The petitioner No.1 is a DIFA transferee is entitled to import Alloy Steel Rods/Rounds/Billets and Hot Rolled/Cold Rolled Sheet/Wide Coils) covered under the DFIA's without showing actual use in the export product . 42. In view of the above discussions, the writ petition of the petitioners are allowed in part in terms of the law laid down by the Punjab Haryana High Court in the case of Pushpanjali Floriculture Ltd. (supra) and is accordingly, disposed of. No costs. 23. In the case at hand, we observe that the respondent-company has imported 791 bags of in-shell walnuts under Bill of Entry No.9878513 dated 31st January, 2019 and has claimed exemption under the said notification dated 11th September, 2009 on the strength of the DFIA against import item of dietary fibre under SION E5. The said goods as mentioned earlier were cleared without payment of duty and exemption benefit was allowed. The custom authorities have however seized the said 791 bags lying in the godown of Hemkunt Agro Care Private Limited on the pretext that in-shell walnuts do not fit into the description of dietary fibre . In our view, once th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of dietary fibre in the manufacture of biscuits/cookies and confectionery. The revenue has not brought before us any evidence/report contrary to the same. 28. The technical opinion by JNCH Lab dated 8th August, 2018 suggests that in-shell walnuts can be used as dietary fibre. The usability of walnuts in biscuits is well known. It is settled law that it would not be open to any one to take a contrary stand unless and until such technical opinion is displayed by specific and cogent evidence in the form of technical opinion. Our view is fortified by the decision of Gujarat High Court in case of Inter Continental (India) v/s. Union of India, 2003 (154) ELT 37 (Guj) and there is no contrary technical opinion produced before us. 29. We are therefore of the view that the proposed question (a) does not raise any substantial question of law. 30. Coming to question (b) as proposed by the Revenue, firstly we observe that there is no ground taken with respect to the said question. Secondly, there is no statutory limitation prescribed under the Customs Act to pass any order within any certain period of limitation after the conclusion of the hearing. Therefore, the said question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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