2010 (10) TMI 163 - AT - Customs

DEPB fraud Transferee of licence whether entitled to benefit of DEPB scripts fraudulently obtained by transferor DEPB scrips used by the respondents for discharge of customs duty were fraudulently obtained by the transferors and were transferred to them - no enquiry from JDGFT to ascertain genuineness of the same - Notificational benefit was availed at the cost of public exchequer which was required to be surrendered for the undue gain made - decision in Friends Trading Co. (2008 -TMI - 78930 - PUNJAB & HARYANA HIGH COURT) squarely applies to the present case of demand of duty on goods in respect of which also, exemption has been availed of, on the basis of DEPB scrips obtained against forged documents - DEPB scheme essentially provides for an alternative mechanism to compensate for duty paid on goods used in the export production - When DEPB scrips have been obtained without undertaking exports, the question of granting a duty benefit by the exchequer cannot arise Why should public revenue suffer on account of a fraud committed by someone else, just because he has successfully transferred the scrip to the appellants after obtaining the same fraudulently? - Duty Liability restored, penalties however set aside

Summary

Issues Involved:
1. Entitlement to the benefit of DEPB scrips fraudulently obtained by the transferor.
2. Imposition of redemption fine and penalty when goods were not available for confiscation.

Detailed Analysis:

1. Entitlement to the Benefit of DEPB Scrips Fraudulently Obtained by the Transferor:
The primary issue is whether the transferee respondents were entitled to the benefit of DEPB scrips that were fraudulently obtained by the transferor. The DEPB scrips used by the respondents for discharge of customs duty were fraudulently obtained by the transferors and were transferred to them. The respondents did not make any enquiry from JDGFT to ascertain the genuineness of the scrips. It is an established principle of law that fraud and justice are sworn enemies. An assessee acting un-cautiously and without being vigilant has no right to claim innocence when he fails to exercise due care and diligence.

Evidence gathered by Revenue unambiguously proved the fraudulent nature of the DEPB scrips. The respondents failed to acquire title over the scrips but became beneficiaries of ill-gotten scrips. Notificational benefit was availed at the cost of public exchequer, which is required to be surrendered for the undue gain made. The respondents did not establish bona fides by failing to cause enquiry from JDGFT. The principle laid down in the judgment of the Hon'ble High Court of Punjab & Haryana in the case of CC v. Leader Valves Ltd. does not apply as the respondents did not act bona fide.

2. Imposition of Redemption Fine and Penalty When Goods Were Not Available for Confiscation:
The adjudicating authority imposed redemption fines and penalties despite the goods not being available for confiscation. The respondents contended that no act or omission or commission was brought on record to substantiate that they connived or abetted in the fraudulent procurement of DEPB. The respondents had purchased the DEPB scrips in normal market parlance and made the payment through bank transactions.

However, the Tribunal found that the fraudulent nature of the DEPB scrips used by the respondents was established, and the respondents did not exercise due care and diligence. The Tribunal held that the respondents were not entitled to duty benefits under the DEPB scheme against fraudulently obtained DEPB scrips. The impugned Orders-in-Appeal were set aside, and the Orders-in-Original were restored. However, penalties were set aside in the circumstances of these cases.

Conclusion:
The Tribunal concluded that the respondents were not entitled to the benefit of DEPB scrips fraudulently obtained by the transferor and upheld the demand for duty. The impugned Orders-in-Appeal were set aside, and the Orders-in-Original were restored, but the penalties imposed were set aside. The appeals were thus partly allowed.