2002 (4) TMI 106 - AT - Customs

EXIM Policy - DEEC Scheme - Advance Licence - Validity and transferability of licence - Export obligation - Misdeclaration

Issues Involved:
1. Validity and transferability of the DEEC advance licence.
2. Compliance with export obligations under the said licence.
3. Jurisdiction of Customs authorities to invalidate the licence.
4. Confiscation and penalties under Sections 111(d) and 111(o) of the Customs Act.
5. Calculation of Margin of Profit (MOP) for determining redemption fine.

Detailed Analysis:

1. Validity and Transferability of the DEEC Advance Licence:
The appellants, a registered SSI unit, processed marble blocks into slabs and sought duty-free clearance of rough marble blocks under a DEEC advance licence issued to another entity and transferred to them. The licence was re-validated and endorsed for transferability by the DGFT. However, the Customs authorities questioned the validity of this re-validation and transferability, alleging misrepresentation and non-compliance with the conditions outlined in the Public Notice dated 31-3-2001.

2. Compliance with Export Obligations:
The Customs authorities scrutinized the licence and found discrepancies in the export obligations. Specifically, the goods exported were normal marble slabs instead of polished marble slabs as required. Additionally, some shipping bills (S/Bills) were converted from 'DEEC' to 'FREE,' implying the exports were not to be reckoned for the purpose of the advance licence. The Commissioner concluded that the re-validation and transferability were obtained through misrepresentation and fraudulence.

3. Jurisdiction of Customs Authorities:
The Commissioner effectively rendered the licence invalid without following the prescribed procedure for cancellation under the Import Trade Control enactments. The judgment cited the Bombay High Court's decision, which held that Customs authorities cannot sit in appeal over the licensing authority's decision and must assume the licence to be effective unless cancelled by the proper authorities. The DGFT did not find the documents produced for questioning the validity of the licence to be questionable or non-permissible.

4. Confiscation and Penalties under Sections 111(d) and 111(o) of the Customs Act:
The Commissioner ordered the confiscation of the goods under Sections 111(d) and 111(o) and imposed a redemption fine and penalty. However, the Tribunal found no reason to uphold the findings of the Commissioner regarding the liability for confiscation under Section 111(d). The Tribunal relied on the Supreme Court's decision in Union of India v. Sampat Raj Dugar, which held that if the goods were covered by a valid import licence on the date of import, subsequent cancellation is irrelevant and does not render the import illegal.

5. Calculation of Margin of Profit (MOP) for Determining Redemption Fine:
The Commissioner found that the appellants did not declare the exact variety of marble blocks, which he considered an intent to suppress the quality of goods. He rejected the evidence produced by the appellants and concluded that expenses incurred for procuring invalid licences could not offset the MOP. The Tribunal disagreed, citing the Supreme Court's decision in Commissioner of Income-tax, Patiala v. Piara Singh, which held that losses from illegal activity could be offset against gains from other activities. The Tribunal did not uphold the calculations on MOP as arrived at by the Commissioner.

Conclusion:
The Tribunal set aside the Commissioner's order, allowing the appeal. The Customs authorities were found to lack jurisdiction to invalidate the licence, and the confiscation and penalties under Sections 111(d) and 111(o) were not upheld. The Tribunal also disagreed with the Commissioner's calculation of MOP for determining the redemption fine.

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