2022 (3) TMI 1005 - AT - Customs

Demand of duty - denial of benefit of DFIA license - whether the license(s) has been obtained by the exporters on the basis of fake export documents? - extended period of limitation - HELD THAT - Nowhere it is the case of the Department that these appellants colluded with any of the persons concerned, for alleged fraud/ forgery/ manipulation of the documents on the basis of which, licenses were obtained. Nor it is the case of the Department that these appellants wilfully mis-stated any of the material facts with regard to their import consignments. Neither it is the case that these appellants suppressed any facts with intent to evade payment of duty. The only observation in the show cause notice and the impugned order is that these appellants did not exercise due diligence in checking the correctness of exports on the basis of which documents DEPB/DFIA licences were issued. Once the DGFT makes the licences transferrable and negotiable on fulfilment of the export obligation, the licences are transferable by delivery and/or endorsement to the transferee. Once the licence is made transferable, the same are traded by the parties through brokers, which is permitted under the DGFT Policy and Foreign Trade Policy. There was no reasons to disbelief the licences issued by the Competent Authority/DGFT. Thus, the same were duly reflected on the website of the DGFT. It is not the case of the Department that the licences itself were forged/fabricated. It is an admitted fact that the licences were genuinely issued by the DGFT after due diligence and were valid at the time of imports made by the appellants. It is further observed that the Adjudicating Authority have erred in not appreciating that these appellants were bonafide purchaser of DIFA licences, which were validly issued and made transferable by DGFT, as well as registered by the Customs Department on their website, on the date of purchase and utilisation by these appellants. Further, admittedly, the licenses in question have been cancelled much thereafter in the month of May, 2012 by the DGFT. In the case of COMMISSIONER OF CUSTOMS VERSUS LEADER VALVES LTD. 2007 (3) TMI 166 - PUNJAB HARYANA HIGH COURT , the similar issue came for consideration in respect of DEPB license purchased from open market under the bonafide belief of being genuine. In the facts and circumstances, the extended period of limitation is not invokable, as admittedly, there is no case of fraud, mis-statement or contumacious conduct on the part of these appellants - as these appeals are allowed on merits, it is not necessary to consider the question of jurisdiction. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Whether duty has been rightly demanded along with an equal amount of penalty under Section 114A of the Customs Act.
2. Whether the appellants exercised due diligence in purchasing and utilizing DFIA licenses.
3. Applicability of extended period for issuing a show cause notice under Section 28(4) of the Customs Act.
4. Jurisdiction of the Principal Director General, DRI to issue the show cause notice under Section 28(4) of the Customs Act.
5. Whether the demand is time-barred.

Issue-Wise Detailed Analysis:

1. Duty and Penalty Demand under Section 114A of the Customs Act:
The core issue in these appeals is whether the duty has been rightly demanded along with an equal amount of penalty under Section 114A of the Customs Act. The appellants, M/s. Neev Trading and M/s. Vids Overseas, utilized DFIA licenses obtained from the open market for importing goods. The Department alleged that these licenses were obtained fraudulently by some exporters using fake export documents. However, the appellants argued that they purchased these licenses in good faith, and the licenses were valid and registered with Customs at the time of import. The Tribunal found that the appellants were bona fide purchasers and were not involved in any fraud or suppression of facts. Therefore, the demand of duty and penalty was set aside.

2. Due Diligence in Purchasing and Utilizing DFIA Licenses:
The Department alleged that the appellants did not exercise due diligence in verifying the genuineness of the licenses and relied on middlemen and brokers. The Tribunal noted that the licenses were duly issued by DGFT and registered with Customs, and there was no reason for the appellants to doubt their authenticity. The Tribunal held that the appellants were bona fide purchasers who acted in good faith and observed due diligence to the extent possible.

3. Extended Period for Issuing Show Cause Notice under Section 28(4) of the Customs Act:
The Department invoked the extended period of five years under Section 28(4) of the Customs Act, alleging fraud and suppression of facts. However, the Tribunal found no evidence of collusion, willful misstatement, or suppression of facts by the appellants. The Tribunal referred to the Supreme Court's judgment in Uniworth Textiles Ltd. vs. Commissioner of Central Excise, which held that the extended period cannot be invoked unless there is deliberate collusion or suppression of facts. Therefore, the extended period was not applicable in this case.

4. Jurisdiction of Principal Director General, DRI to Issue Show Cause Notice:
The appellants challenged the jurisdiction of the Principal Director General, DRI, to issue the show cause notice under Section 28(4) of the Customs Act, relying on the Supreme Court's judgment in Canon India Case. The Tribunal noted that the Apex Court held that only the proper officer who assessed the goods at the time of clearance could issue such notices. Since the show cause notice in this case was issued by the DRI, the Tribunal found it to be without jurisdiction.

5. Demand is Time-Barred:
The Tribunal observed that the show cause notice was issued beyond the normal period of one year, and there was no evidence of fraud or suppression by the appellants. Therefore, the demand was time-barred as per the Supreme Court's ruling in Commissioner of Customs, Central Excise & Service Tax vs. Monsanto Manufacturer Pvt. Ltd., which held that if a case is barred by limitation, there is no need to proceed on merits.

Conclusion:
The Tribunal set aside the demand of duty and penalty on the appellants, holding that they were bona fide purchasers of valid DFIA licenses and that the extended period of limitation was not invokable. The Tribunal also found that the show cause notice issued by the DRI was without jurisdiction and that the demand was time-barred. The appeals were allowed on merits.