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2018 (12) TMI 958 - AT - CustomsForged DEPB license - finalization of assessment of Bills of Entry - Section 82 of Customs Act, 1962 - Held that - In the instant case the assessments were provisional and at the time of finalization it was brought to the light that the DEPB scrips were forged having known the fact the department cannot put the Revenue at loss due to the argument that the importer was a bona fide transferee of the scrips and was not having any knowledge of the forgery etc., in respect of the scrips. In respect of DEPB scrips, Tribunal and Courts have been consistently holding that the forged DEPBs are ab initio non est. There is no infirmity with the order passed by the Commissioner (A) and that the appeal does not survive - appeal dismissed - decided against appellant.
Issues:
1. Validity of DEPB licenses purchased by the appellants. 2. Finalization of provisional assessment based on forged DEPB scrips. 3. Applicability of case laws in determining liability for customs duty. 4. Interpretation of the Customs Act regarding finalization of provisional assessment. 5. Consideration of genuine broker involvement in DEPB license purchase. Issue 1: Validity of DEPB licenses The case involved the appellants importing goods using DEPB licenses purchased in the open market, which were later found to be forged and cancelled by DGFT authorities. The appellants argued they acted in good faith, as the licenses were valid at the time of import. They cited a Bombay High Court decision stating that goods imported under valid licenses are not subject to customs duty. However, the Tribunal held that the licenses being forged made them ab initio void, and the department was justified in demanding customs duty. Issue 2: Finalization of provisional assessment The Tribunal considered the argument that the department delayed finalizing the provisional assessment, allowing the Revenue to recover lost revenue due to the forged DEPB scrips. The Tribunal emphasized that the delay was beneficial for the Revenue, and the finalization was necessary to prevent revenue loss. The Tribunal dismissed the appeal, upholding the Commissioner's order for finalizing the provisional assessment and demanding customs duty. Issue 3: Applicability of case laws The appellant cited various case laws, including a Supreme Court decision, to support their contention that they should not be liable for customs duty. However, the Tribunal distinguished the facts of those cases from the present situation, emphasizing that forged DEPBs are considered non est from the beginning. The Tribunal relied on a Calcutta High Court decision stating that no credit can be derived from a forged DEPB, making the importer liable for duty payment despite lack of collusion or fraud. Issue 4: Interpretation of the Customs Act The Tribunal clarified that the Customs Act does not specify a time limit for finalizing provisional assessments. It noted that the Revenue's duty is to recover lost revenue within the legal framework, even if the finalization is delayed. The Tribunal upheld the department's right to consider the forged DEPBs during finalization, rejecting the argument that the delay should prevent revenue recovery. Issue 5: Genuine broker involvement The appellants highlighted the involvement of a genuine broker in purchasing the DEPB licenses, indicating their good faith in the transaction. However, the Tribunal focused on the forged nature of the licenses and the resulting duty liability, emphasizing that the appellants cannot avoid duty payment based on their genuine involvement with the broker. In conclusion, the Tribunal upheld the Commissioner's order, dismissing the appeal and affirming the demand for customs duty based on the forged DEPB licenses. The judgment emphasized the ab initio void nature of forged licenses and the department's right to recover lost revenue, despite the appellants' good faith actions.
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