2008 (10) TMI 229 - AT - Customs

DEPB credit Fake DEPB scripts Held that - Appellant had acted on the basis of forged, fake and fabricated document, without bothering to enquire from the Customs Authority, DGFT Authority or the so called DEPB holders as to genuineness of the DEPB scrips, the Appellants can be said to have committed breach of law - the appellants should surrender the benefit they had already enjoyed at the cost of Revenue and liable to penal consequence of law also - duty liability determined and confirmed regarding penalty matter remanded.

Issues Involved:
1. Time-barred demands
2. Violation of principles of natural justice
3. Evidence of collusion
4. Benefit of exemption Notification No. 34/97-Cus.
5. Modes of discharging duty liability
6. Finality of duty assessment
7. Principle of promissory estoppel
8. Precaution in purchasing licenses
9. Contribution to fraud by Customs authorities
10. Confiscation of goods under Section 111(o) of the Customs Act, 1962
11. Imposition of penalty under Section 112(a) of the Customs Act, 1962

Detailed Analysis:

1. Time-barred Demands:
The appellant argued that the demands were time-barred and should be set aside. However, the tribunal found that the proceedings were initiated in view of fraud, which is not subject to the usual time limitations. Therefore, the plea of time bar was not accepted.

2. Violation of Principles of Natural Justice:
The appellant contended that the principles of natural justice were violated as they were not provided with the relied-upon documents and were denied cross-examination of Customs authorities. The tribunal did not find merit in this argument as the appellant failed to provide evidence to contradict the findings of the adjudicating authority.

3. Evidence of Collusion:
The appellant claimed there was no evidence of collusion with non-existent firms. The tribunal found that the DEPB scrips were proven to be fake and forged, and the appellant could not provide any evidence to the contrary. The High Court of Calcutta had held that the absence of collusion is immaterial when the DEPB scrips are forged.

4. Benefit of Exemption Notification No. 34/97-Cus.:
The appellant argued that they availed the benefit of the exemption notification as prescribed by law. However, the tribunal held that since the DEPB scrips were forged, the appellant was not entitled to any benefits under the exemption notification.

5. Modes of Discharging Duty Liability:
The appellant contended that they adopted one of the two permissible modes of discharging duty liability. The tribunal found that the use of forged DEPB scrips invalidated any claim to have discharged duty liability lawfully.

6. Finality of Duty Assessment:
The appellant argued that the assessment of duty had attained finality and could not be reopened. The tribunal rejected this argument, stating that fraud vitiates everything, including final assessments.

7. Principle of Promissory Estoppel:
The appellant invoked the principle of promissory estoppel against the government. The tribunal did not accept this plea, citing that fraud nullifies any claim of estoppel.

8. Precaution in Purchasing Licenses:
The appellant claimed they took sufficient precautions to ensure the licenses were genuine. The tribunal found that the appellant failed to verify the authenticity of the DEPB scrips from the DGFT or the purported original holders, thus not taking adequate precautions.

9. Contribution to Fraud by Customs Authorities:
The appellant argued that if there was any fraud, the Customs authorities contributed to it. The tribunal dismissed this argument, stating that negligence or collusion by officials does not absolve the appellant from liability.

10. Confiscation of Goods under Section 111(o) of the Customs Act, 1962:
The tribunal upheld the confiscation of goods under Section 111(o) of the Customs Act, 1962, as the goods were imported using forged DEPB scrips. The non-availability of goods for confiscation did not absolve the appellant from liability.

11. Imposition of Penalty under Section 112(a) of the Customs Act, 1962:
The tribunal upheld the imposition of a penalty under Section 112(a) of the Customs Act, 1962, but remanded the matter for fresh decision on the penalty aspect. The adjudicating commissioner was directed to pass an appropriate order after the conclusion of the investigation, providing a reasonable opportunity for hearing to the appellant.

Conclusion:
The appeal relating to the duty demand was dismissed, and the appeal relating to the imposition of the penalty was allowed by way of remand to the adjudicating authority for a fresh decision.

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