2018 (7) TMI 926 - AT - Customs

Whether the transferee of the DEPB licence which was fraudulently obtained by the transferor (exporter of the goods) is liable to pay the customs duty? - whether the demand is time barred? Held that - Hon ble Supreme Court judgment in the case of Ajay Kumar & Co. 2009 (5) TMI 20 - SUPREME COURT has held that the malafide and suppression of fact, misdeclaration, fraud etc. cannot be alleged against the transferee, against the DEPB licence, therefore, demand for the extended period cannot be raised against the transferee of the licensee - In view of the above findings, being same set of facts in the present cases, the demand of extended period is not sustainable. Since we are deciding these appeals only on the ground of limitation, we do not incline to address the merit of the case. Appeal dismissed - decided against Revenue.

Summary

Issues involved: Liability of transferee of DEPB license obtained fraudulently by transferor, customs duty payment, time-barred demand.

Analysis:
1. The appeals filed by the Revenue against the Commissioner (Appeals) orders questioned the liability of the transferee of a DEPB license obtained fraudulently by the exporter, and whether the customs duty payment is required from the transferee. The main issue was whether the demand was time-barred.
2. The Revenue argued that the DEPB license was fraudulently obtained by overvaluing export goods, making imports under the license ineligible for DEPB benefits. They cited various judgments to support their stance.
3. The respondents contended that even if the DEPB license was fraudulently obtained by the exporter, as long as it was validly issued by the DGFT, the transferee should not be denied DEPB benefits. They also argued that since the transferee had no malafide intent, the demand for an extended period was not applicable. They relied on several judgments to support their position.
4. The Ld. Commissioner (Appeals) dropped the demand both on merit and limitation grounds. They found no malafide intention or suppression of facts by the appellant, making the demand unsustainable under the extended period of limitation.
5. The Tribunal upheld the Ld. Commissioner (Appeals) findings, stating that malafide actions cannot be attributed to the transferee of the DEPB license, thus barring the demand for the extended period. They referenced a judgment by the Hon'ble Supreme Court and a similar case decided by the Hon'ble Gujarat High Court to support their decision.
6. Following the Hon'ble High Court's decision, the demand for the extended period was deemed unsustainable in all cases, leading to the dismissal of Revenue's appeals based on the limitation ground. The Tribunal did not address the case's merits due to the limitation ruling.

This detailed analysis covers the liability of the transferee, customs duty payment, and the time-barred demand issues addressed in the judgment.