2008 (2) TMI 119 - AT - Customs

Appellant purchased DEPB scrips which were availed fraudulently by seller appellant should have enquired about their genuineness from Customs/DGFT Authorities - cogent and credible evidence are available against the appellant- duty demand in respect consignments cleared under cover of forged and fake DEPB scrips is held to be in order - appeals are dismissed and appeal relating to imposition of penalty is allowed by way of remand to the ld. Adjudicating Authority

Issues Involved:
1. Duty demand on imported consignments under forged DEPB scrips.
2. Confiscation of goods under Section 111(o) of the Customs Act, 1962.
3. Imposition of penalty under Section 112(a) of the Customs Act, 1962.
4. Bona fide purchaser defense.
5. Limitation period for initiating proceedings.

Detailed Analysis:

1. Duty Demand on Imported Consignments Under Forged DEPB Scrips:
The Appellant imported consignments using forged DEPB scrips, resulting in duty demands:
- Cus. Appeal No. CDM-58/2005: 12 consignments with a duty of Rs. 19,29,460/-.
- Cus. Appeal No. CDM-63/2005: 6 consignments with a duty of Rs. 11,89,774/-.
- Cus. Appeal No. CDM-111/2005: 1 consignment with a duty of Rs. 3,08,933/-.

The Tribunal held that the DEPB scrips were fake and forged, and thus, the duty demands were valid. The Appellant's claim of being a bona fide purchaser did not absolve them from the duty liability as the DEPB scrips were non-existent and fraudulent.

2. Confiscation of Goods Under Section 111(o) of the Customs Act, 1962:
The aggregate value of goods was confiscated under Section 111(o) but no redemption fine was imposed as the goods were not available for confiscation:
- Cus. Appeal No. CDM-58/2005: Rs. 47,79,535.34/-
- Cus. Appeal No. CDM-63/2005: Rs. 28,06,206/-
- Cus. Appeal No. CDM-111/2005: Rs. 8,46,450/-

The Tribunal upheld the confiscation orders, stating that the goods were liable for confiscation due to the fraudulent nature of the DEPB scrips used.

3. Imposition of Penalty Under Section 112(a) of the Customs Act, 1962:
Penalties of Rs. 10,00,000/- each were imposed under Section 112(a) for all three appeals. The Tribunal found that the Appellant acted on forged documents and was liable for penalties. However, considering the ongoing investigation into the criminal conspiracy, the Tribunal set aside the penalties and remanded the matters for fresh adjudication post-investigation.

4. Bona Fide Purchaser Defense:
The Appellant claimed to be a bona fide purchaser of the DEPB scrips with no involvement in the fraud. The Tribunal noted that the DEPB scrips were proven to be fake and forged, and the Appellant did not verify their authenticity. The defense of bona fide purchase did not grant immunity from duty liability or penalties.

5. Limitation Period for Initiating Proceedings:
The Appellant argued that the proceedings were barred by limitation under Section 28(1) of the Customs Act, 1962. The Tribunal held that the proceedings were within the limitation period, as the fraudulent nature of the DEPB scrips warranted the extended time limit for initiating action. The Tribunal cited relevant case law to support this conclusion.

Conclusion:
The Tribunal dismissed the appeals relating to the duty demands, upholding the adjudicating authority's orders. The confiscation of goods was also upheld. However, the penalties imposed under Section 112(a) were set aside and remanded for fresh adjudication after the conclusion of the criminal investigation. The Appellant's defense of being a bona fide purchaser and the plea of limitation were not accepted. The Tribunal emphasized that fraud vitiates all transactions and legal defenses.

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