2010 (6) TMI 759 - HC - Customs

Summary

Issues Involved: Challenge to order by Customs, Excise and Service Tax Appellate Tribunal regarding denial of benefit of Notification No.34/97-Cus, validity of licences obtained by importer, invocation of extended period under section 28 of the Customs Act, 1962, and imposition of penalty under section 112(a)(ii) of the Customs Act, 1962.

1. Denial of Benefit of Notification No.34/97-Cus:
The appellant-revenue challenged the Tribunal's order proposing denial of benefit of Notification No.34/97-Cus for goods imported by the importer under Bills of Entry. The importer had utilized DEPB licences obtained from the local market, which were subsequently cancelled ab initio by the licensing authority. The Customs authority initiated proceedings against the importer, alleging that due to the cancellation of licences, the importer was not entitled to claim the benefit of the notification. The Commissioner of Customs confirmed duty, penalty, and interest, which was appealed by the importer.

2. Validity of Licences Obtained by Importer:
The respondent-importer had utilized DEPB licences for importing steam coal, which were originally obtained by another entity and later transferred to the importer. The licensing authority cancelled these licences ab initio, leading to proceedings by Customs authority against the importer. The appellant-revenue contended that transactions based on cancelled licences would be void, and the importer would not be entitled to any benefit under the licences. It was argued that fraud vitiates everything, and the Tribunal was not justified in interfering with the Commissioner's order.

3. Invocation of Extended Period and Imposition of Penalty:
The appellant-revenue raised concerns regarding the invocation of the extended period under section 28 of the Customs Act, 1962, and imposition of penalty under section 112(a)(ii) of the Customs Act, 1962. The appellant contended that the importer should not be entitled to any benefit under the licences obtained through fraud or mis-declaration. The Tribunal, however, found the case comparable to previous decisions by the High Court and Supreme Court, indicating that the impugned order did not suffer from any legal infirmity.

Conclusion:
The Tribunal dismissed the appeal, stating that in the absence of any substantial question of law, the impugned order did not warrant interference. The Tribunal's decision was based on the precedents set by the jurisdictional High Court and the Supreme Court, indicating that the appellant's challenges were not legally justified.