2006 (7) TMI 477 - AT - Central Excise

Issues Involved:
1. Adjournment Request
2. Fraudulent Procurement of REP Licences
3. Import of Gold using Fraudulent Licences
4. Liability and Penalty under Customs Act
5. Validity of Licences and Retrospective Cancellation
6. Bona Fide Purchaser for Value without Notice of Fraud
7. Role of State Authority in Fraudulent Licences

Detailed Analysis:

1. Adjournment Request:
During the hearing, the appellant from M/s. New Kailash Jewellery House requested an adjournment because their advocate was out of India. The tribunal denied the request, stating that the hearing would continue and the appellant could participate.

2. Fraudulent Procurement of REP Licences:
The revenue alleged that M/s. Shivam Enterprises and M/s. Shyam Exports obtained 62 REP licences using forged documents, resulting in the import of approximately 350 kgs of gold without customs duty, causing a revenue loss of Rs. 5.23 crores. The licences were obtained using forged Bank Realisation Certificates and Registration-cum-Membership Certificates from the Gem & Jewellery Export Promotion Council. The licences were then used by M/s. K.K. Exports, M/s. M.D. Overseas Limited, and M/s. New Kailash Jewellery House.

3. Import of Gold using Fraudulent Licences:
- M/s. New Kailash Jewellery House: Alleged to have purchased five gold REP licences from Mr. Vinay Sethi at an 8% premium, paid in gold bullion, and used them for importing duty-free gold.
- M/s. M.D. Overseas Ltd.: Alleged to have obtained eight gold REP licences from Mr. Vinay Sethi at an 8% premium, four directly and four through Mr. Kulbhushan Sethi, and used them for importing duty-free gold.
- M/s. K.K. Exports: Alleged to have procured REP licences at a premium, paid in gold bullion, and used them for importing duty-free gold.

4. Liability and Penalty under Customs Act:
The Commissioner found that the importation under invalid licences was illegal and liable for confiscation under Section 111 of the Customs Act, 1962. Penalties were imposed under Section 114A of the Act:
- M/s. New Kailash Jewellery House: Duty demand of Rs. 54,25,844/- and a penalty of the same amount.
- M/s. M.D. Overseas Ltd.: Duty demand of Rs. 83,58,911/- and a penalty of the same amount.
- M/s. K.K. Exports: Duty demand of Rs. 1,45,18,998/- and a penalty of the same amount.

5. Validity of Licences and Retrospective Cancellation:
The appellants argued that the licences were valid at the time of import and subsequent cancellation should not invalidate the imports. They cited various judgments to support the claim that a licence obtained by fraud is voidable, not void ab initio, and remains valid until cancelled.

6. Bona Fide Purchaser for Value without Notice of Fraud:
The appellants claimed they were bona fide purchasers for value without notice of fraud. They argued that they did not participate in the forgery and took precautions to verify the licences' genuineness. The tribunal noted that the plea of bona fide purchaser must be substantiated with evidence showing the bona fide nature of the transaction.

7. Role of State Authority in Fraudulent Licences:
The tribunal emphasized that fraud on the State cannot be treated the same as fraud between private parties. State officials cannot ratify fraudulent acts, and licences obtained through fraud cannot create valid rights or privileges. The tribunal cited various judgments to support the principle that fraud vitiates everything and cannot be perpetuated or saved by any equitable doctrine.

Conclusion:
The tribunal set aside the impugned order and remanded the matters to the Commissioner for fresh consideration, directing a thorough examination of the transactions, statements, and documentary evidence, including books of account and bills. The Commissioner was instructed to determine whether the appellants were bona fide purchasers for value without notice of fraud and to decide the liability and penalties accordingly. The tribunal ordered the Commissioner to expedite the decision within four months from the receipt of the order.

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