2006 (9) TMI 53 - AT - Customs

EXIM-DEPB Licence - It alleged that the respondent had used forged bank realisation certificate for getting DEPB Licence - Adjudicating authority after go through the case find the assessee right

Summary

Issues: Appeal against setting aside penalties imposed by Order-in-Original dated 31-1-2006.

Analysis:
1. The respondent company and its partner obtained DEPB license and exported goods under it during 1999-2000. Allegations of forging bank realization certificate for DEPB license led to license cancellation. Show cause notice issued proposing penalty imposition, which was later set aside by Commissioner (Appeals) citing reasons of non-importer status and lack of specific clause invocation under Section 112. Revenue appealed against this decision.

2. The Departmental Representative argued that the show cause notice did not specify the offense committed by the respondents, emphasizing that forging bank certificates for DEPB license constitutes a crime. Citing precedent, it was contended that non-mentioning of a specific clause under Section 112 does not invalidate penalty imposition.

3. The respondents' advocate contended that correct bank certificates were submitted against shipping bills, and though DEPB scrips were obtained without producing these certificates, foreign exchange was realized. Referring to legal precedents, it was argued that penalty imposition under Section 112 was settled by the Madras High Court and Tribunal decisions.

4. Upon review, it was found that penalties were imposed without invoking any specific sub-clause under Section 112. Furthermore, the Tribunal had previously set aside penalties imposed on the respondents for wrongly exported goods, indicating correct export and realization of foreign exchange.

5. The main issue revolved around whether the respondents exported goods and realized foreign exchange due to the Government. Previous Tribunal decisions supported the respondents' export actions, leading to the conclusion that penalties under Section 112 were incorrectly imposed due to the absence of any prohibition or wrongdoing in the export process.

6. The Commissioner (Appeals) rightly relied on the Madras High Court judgment regarding clear charges against the accused under Section 112. The Tribunal also previously decided on a similar case of fraudulent license acquisition, emphasizing the need for clear charges and valid penalties.

7. The Tribunal's decision in a related case highlighted the importance of clear charges and valid penalties, emphasizing that in the absence of penalties on importers and the validity of licenses during import, penalties on the appellants could not be justified.

8. The Tribunal's decision in another case upheld penalties under Section 112 based on undisputed evidence of smuggling, contrasting the current case where the respondents' actions aligned with legal precedents and court decisions.

9. Considering the legal precedents and evidence presented, it was concluded that the penalties imposed on the respondents were not valid, and the decision of the Commissioner (Appeals) was upheld based on the clarity of charges and absence of specific sub-clauses invoked under Section 112.

10. Following the legal principles established by the Madras High Court and previous Tribunal decisions, the impugned order was deemed correct, and the Revenue's appeals were rejected.