By TIOL News Service

AHMEDABAD, JULY 15, 2014: ON 18.04.2013, an amendment was made in the Foreign Trade Policy, wherein exemption from antidumping duty and safeguard duty on materials imported against transfer of DFIA licence was withdrawn by inserting para 4.2.6 (d) in Foreign Trade Policy in Chapter IV of Foreign Trade Policy, vide Notification No.2 (RE-2013)/2009-14.

Consequently, vide Notification No.24/2013-CUS dated 18.04.2013, the earlier Customs Notification No.98/2009-CUS was amended, wherein the exemption from antidumping duty and safeguard duty on materials imported against transfer of DIFA license was withdrawn.

Thereafter, by further Notification No.45/2013-CUS dated 17.09.2013 it was notified that exemption from antidumping duty and safeguard duty shall not be available on materials imported against DFIAs, which have been transferred on or after 18.04.2013.

As for the case on hand, the facts go thus -

+ The Appellant imported a consignment of Soda Ash and filed B/E on 25.03.2014 seeking duty free clearance under Notification No.98/2009-CUS dated 11.09.2009, including exemption from levy of antidumping duty, by presenting a Transferable Duty Free Import Authorization (DFIA) which was issued on 19.06.2012 as per the provisions of Foreign Trade Policy in force on that date.

+ On presentation of B/E, since the transferability was endorsed on 14.06.2013 i.e. after cutoff date 18.04.2013, the exemption from antidumping duty was denied to the Appellant.

Against this order, the appellant is before the CESTAT.

The Bench after hearing the lengthy submissions took note of the apex court decision in Asian Food Industries 2006-TIOL-147-SC-CUS & the Calcutta High Court decision in Soubhik Exports Ltd 2007-TIOL-92-HC-KOL-EXIM and observed -

“Thus, in exercise of the powers conferred under section 5 of the FTDR Act, the Policy can be amended however any oppressive amendment to the Policy is applicable only prospectively. The judgment of Hon'ble Apex Court in Purbanchal Cables & Conductors (P) Ltd. Vs. Assam SEB (supra) also supports the argument of the Appellant, and in view of the same, the view taken by the Hon'ble Bombay High Court in Kingfisher Airlines Ltd (supra) would have to be ignored. The subsequent law would not affect the contractual obligations of contracts already existing, can be a view in given facts of a case.”

Nonetheless, the Bench further observed -

++ In the instant case, the lower authority has taken the impugned decision on the basis of the amended Customs Notification, which is against the grant of exemption.

++ There may be force in the argument of the appellant regarding the fact that the purpose of Notification issued by the Central Government through Ministry of Finance was only to give effect to the amendment in the FTP by Central Government through Ministry of Commerce, however, it is not for us to look into this aspect.

++ The Respondent lower authority as well as this Tribunal are creature of Statute, and cannot take any decision contrary to the same, on considerations of equity or justice. We cannot even sit in appeal over correctness or otherwise of a Customs Notification. If the Appellant is aggrieved by the correctness of the Customs Notification the remedy lies elsewhere, and we surely have no jurisdiction to entertain any such challenge directly or indirectly.

In fine, the appeal was dismissed.

(See 2014-TIOL-1247-CESTAT-AHM)