GLOBAL EXIM Vs. COMMISSIONER OF CUSTOMS (EXPORT)

JUDGEMENT

(1.) THE appellants are in appeal against the impugned order denying the exemption from anti -dumping duty as per Notification 24/2013, dated 18 -4 -2013. The brief facts of the case are that the appellant purchased 10.5 MT Phosphoric Acid from Desmo Export Ltd. out of the total quantity of 110.25 tons of Phosphoric Acid imported and warehoused under bill of entry dated 25 -4 -2013. The said goods were assessed and anti -dumping was imposed under Notification 19/12 -Cus., dated 4 -4 -2012. The appellants filed ex -bond bill of entry on 9 -5 -2013 and claimed the benefit of Notification No. , dated 11 -9 -2009 based on the valid DFIA dated 21 -5 -2012, which was transferred in the name of the appellant as per the provisions of the Foreign Trade Policy on 9 -4 -2013. As per the said DFIA, the appellant were allowed to import of goods of the quantity and value mentioned therein without payment of duties of Customs including anti -dumping duty within the validity period of 36 months. The Notification 98/2009, dated 11 -9 -2009 exempts the material imported in India against the DIFA issued endorsement of para 4.2.1 and 4.2.2 of the Foreign Trade Policy from the whole of the duty of Customs leviable thereon which is specified in First Schedule of Customs Tariff Act, 1975 and whole of the additional duty, safeguard duty and anti -dumping duty leviable thereon respectively under Section 3, 8B and 9A of the CTA subject to the conditions mentioned therein. Therefore, vide Notification 2 (RE -2013) dated 18 -4 -2013, various provisions of the FTP were amended including exemption from payment of Anti -Dumping Duty under DFIA. As per the said Notification anti -dumping duty and safeguard duty would be leviable on goods imported against transferred DFIA. Consequently, the Customs Notification 98/2009 was amended through Notification 24/2013, dated 18 -4 -2013 to give the effect of said Notification in the policy. Consequent to the said Notification, the appellant were denied the exemption from payment of Anti -Dumping Duty on the ground that on the date of filing of the bill of entry Notification 98/2009, dated 11 -9 -2009 was amended and having regard to the provisions of Section 15(1)(b) of the Customs Act, 1962, the appellants are not entitled to exemption from payment of Anti -Dumping Duty on the imported goods. Aggrieved from the said order, the appellant is before us.

(2.) THE ld. Counsel for the appellant submits that they have purchased the DFIA in question from the original exporter which was transferred by making necessary endorsement of transferability on 9 -4 -2013 post completion of export obligation by the Regional Authority. The said DFIA allowed import of the goods without payment of duty of Customs including Anti -Dumping Duty without any restriction of use of the imported goods by the licence holder only. Therefore, the exemption from payment of duty of Customs including Anti -Dumping Duty was available to the imports made by the licence holder as well as the transferee.

(3.) ON the other hand, ld. AR opposed the contention of the Counsel and submits that the licence dated 21 -5 -2012 was granted with the following express rider: