Date of order: 04 November 2022

Facts:

• The appellant, Amar Cold Storage, is engaged in the manufacturing of, Surimi‟ and exporting the same in the name of processed, preserved, and frozen surimi under the DEPB credit declaring the product under Sr. No.2 of the group code no. 66 of Fish & Fish Products of the DEPB Schedule.
• The department on the ground that the product manufactured and exported by the appellant falls under Sr.No.1 of group code no.66 under the description of Fish & Fish Products including frozen meat and thus the appellant has wrongly taken benefit by availing DEPB.
• A show cause notice was adjudicated by the adjudicating authority whereby, it was ordered for recovery of Rs.79,78,420/- under proviso to section 28(1) of the Customs Act, 1962 along with interest under Section 28AB and also imposed a penalty of Rs.50 lakhs under Section 114(ii) of the Customs Act, 1962.
• Aggrieved by the original order, the appellant filed the present appeal.

Issue:

• Whether the processed, preserved and frozen surimi comes under the DEPB credit declaring the product under Sr. No.2 of the group code no. 66 of Fish & Fish Products of the DEPB Schedule ?

Order:

• The authorities find that earlier this matter was remanded by this Tribunal to pass a denovo order after consideration of DGFT‟s clarification vide letter dated 09.01.2009. The adjudicating authority though considered the said letter dated 09.01.2009 but the same was discarded on the ground that the decision by the DEPB Committee earlier will prevail.
• The authorities observed that DGFT has taken a decision that the appellant’s export product namely “Surimi” is classifiable under DEPB entry Sr.No.2/66 even for the period prior to 01.04.2002. 
• The authorities find that on the basis clarification, DGFT withdrawn the show cause notice dated 03.04.2007 issued to the appellant.
• The authorities have the view that the clarification given by the DGFT will prevail over the allegation made by the Customs Department therefore, the entire adjudication order passed discarding the decision taken by the DGFT cannot be sustained.
• The appeal is allowed.