By TIOL News Service

MUMBAI, FEB 18, 2013: THE appellant submitted release advises on 28/12/2011 for clearance of goods under three DEPB licences all of which had been validated up to 10/12/2011. As per the provisions of Foreign Trade Policy 1997-2002, if the date of expiry of a DEPB licence falls before the last day of the month, then the DEPB shall be deemed to be valid till the last day of the said month. Since in the instant case the DEPB were originally issued in respect of the exports made during August, 1997, the appellant was of the view that the licences are valid till 31/12/2011 and on the day of importation, the licence was a valid one.

The Customs authorities were of the view that as per the provisions of 2004-2009 and 2009-2014 Foreign Trade Policy the licence should be valid on the date of debit and the provisions of 1997-2002 Policy has no application. Since in the present case the licence was presented on 27/12/2011 and the licence had already expired on 10/12/2011, the benefit of DEPB will not be available, held the Customs authorities.

The appellant preferred an appeal before the lower appellate authority but were unsuccessful and hence are before the CESTAT.

The Bench observed that the issue lay in a narrow compass and hence took up the appeal itself.

The CESTAT observed -

“3.1 The issue involves interpretation of Foreign Trade Policy of 2004-2009 and 2009-2014 regarding validity of the DEPB licence, i.e when the licence expires in the middle of a month, whether it is valid till the last day of the month or not as provided for in the 1997-2002 policy? In matters relating to Foreign Trade Policy, it is always advisable to take the opinion of the Foreign Trade authorities, whose decision is final. In the present case, we find that the Customs has not sought any opinion from the office of the DGFT in the matter. Accordingly, we are of the view that the matter should go back to the original adjudicating authority to refer the matter to the DGFT and seek their opinion in this regard and, thereafter, on the basis of advise received from DGFT, to dispose of the case finally. The appellants are also at liberty to take up the matter with the DGFT and seek their opinion and present their case before the Customs. Needless to say, the appellant shall be heard before passing the order.”

The appeal was thus allowed by way of remand.

(See 2013-TIOL-312-CESTAT-MUM)