2017 (4) TMI 19 - AT - Customs

Duty exemption scrips - appellants claimed to have been legally purchased but which, nevertheless, are established as having been obtained by the transferors through fraud - Held that - Propriety demands that contrarian views having been placed on record, we must take recourse to time-tested institutional mechanism to resolve the predicament. In our view, a uniform and consistent approach is mandated even though instinctive sympathies, as human beings, may lie with an innocent party in a business transaction of sale and purchase; but even conscious that, since the dawn of commercial engagement, the doctrine of caveat emptor must stand to handicap a buyer in transactions if chaos and mayhem are not to prevail. That uniformity and consistency can be consummated only with a resolution that brooks no contrarian view. A larger bench alone can settle the issue - matter referred to larger bench.

Summary

Issues Involved:
Culpability of importers for utilizing duty exemption scrips obtained through fraud.

Analysis:
The primary issue in this appeal is the determination of the culpability of importers, challenged with the levy of duties, confiscation, and penalties, for utilizing duty exemption scrips obtained fraudulently. The case involves M/s Apar Industries Limited and its employees presenting DEPB scrips for clearance of goods against which nil basic customs duty was assessed. The scrips were found to have been obtained through fraud without executing any export orders. The licencing authority nullified these scrips ab initio, leading to the order of recovery of duties, confiscation, and penalties. The appellant-importer claims they had no reason to suspect the fraudulent origins of the scrips as the license was invalidated only after the import. The arguments presented by both sides cited various legal decisions to support their positions.

The tribunal found itself in a dilemma due to conflicting precedents. While duty liability cannot be imposed without evidence of active collaboration in the fraudulent sourcing of scrips, the anxiety expressed by the Supreme Court that any hint of fraud taints transactions significantly influenced the deliberations. The lack of diligent support from both sides led to decisions not in conformity with earlier tribunal decisions. The aspect of duty liability was settled by previous decisions, emphasizing the importance of genuine acquisition of scrips to avoid detrimental consequences.

The tribunal dismissed the appeal, upholding the duty liability in the circumstances. The correctness of deeming the goods as offending under Customs Act sections 111 and 112 against the importer and its officials was also discussed. The need for a uniform and consistent approach, even if sympathies may lie with an innocent party, was highlighted. A larger bench was deemed necessary to resolve the issue of whether a scrip obtained fraudulently should be held against the importer for penalty imposition. The matter was directed to be placed before the Hon'ble President to constitute a Larger Bench for a final decision.

In conclusion, the judgment addressed the complex issue of culpability of importers for utilizing duty exemption scrips obtained fraudulently, highlighting conflicting precedents, the importance of genuine acquisition of scrips, and the need for a uniform approach in resolving such matters.