2015 (9) TMI 1316 - AT - Customs

Duty Entitlement Pass Book - Use of forged DEPB Extended period of limitation it was contended that, they are bonafide purchaser of the DEPB scrips from the open market, as per the provisions of the Policy and payment was made by cheques. There is no material available of fraud, collusion etc against the Importer and therefore, the extended period of limitation cannot be invoked. - Held that - No dispute that, appellant availed credit on basis of said DEPB scrip, which was issued by Customs authorities Thus, at time of import of goods, DEPB scrips were not found forged Importer imported goods on basis of documents, which were valid at time of importation and therefore, such document was valid, till it was not set-aside Thus, extended period cannot be invoked Demand of duty along with interest was not sustainable as barred by limitation No material available that appellant abetted exporter for their gain and therefore, it would not come within ambit of imposition of penalty Therefore, demand of duty along with interest and penalty being barred by limitation, hereby set aside Decided in favour of Assesse.

Issues Involved:
1. Limitation period for demand of duty.
2. Imposition of penalty on the importer.
3. Imposition of penalty on the Superintendent of Central Excise.
4. Imposition of penalty on the exporter and its Director.
5. Imposition of penalty on the Custom House Agents.

Issue-wise Detailed Analysis:

1. Limitation Period for Demand of Duty:
The primary contention was whether the demand for customs duty was barred by limitation under Section 28(1) of the Customs Act, 1962. The importer argued that they were a bona fide purchaser of DEPB scrips from the open market and had no knowledge of any fraud. The Tribunal noted that the Adjudicating authority did not find any evidence of collusion, willful mis-statement, or suppression of facts by the importer. The DEPB scrips were valid at the time of importation and were only canceled four years later. Therefore, the extended period of limitation could not be invoked, and the demand for duty along with interest was deemed unsustainable as it was barred by limitation.

2. Imposition of Penalty on the Importer:
The Tribunal found that since the demand for duty was not sustainable due to the limitation period, the imposition of a penalty on the importer was also unwarranted. The importer had acted in good faith, purchasing the DEPB scrips through proper channels and making payments via cheques. There was no evidence of the importer's involvement in any fraudulent activities.

3. Imposition of Penalty on the Superintendent of Central Excise:
The Tribunal examined the penalty imposed on Shri D.R. Ahuja, the Superintendent of Central Excise, under Section 112(a) of the Customs Act. It was found that Ahuja had countersigned the documents as a bona fide act amidst a rush of work. There was no material evidence suggesting that Ahuja abetted the exporter in manipulating export documents. The Tribunal referenced a previous case involving Ahuja where a similar penalty was set aside, concluding that the imposition of a penalty on Ahuja was not justified.

4. Imposition of Penalty on the Exporter and its Director:
The Tribunal upheld the penalties imposed on the exporter, M/s Supreme Castings Ltd, and its Director, Shri Gurkirpal Singh. The Adjudicating authority had found that they deliberately manipulated export documents to avail extra benefits under the DEPB scheme. The exporter and its Director did not respond to the Show Cause Notice or appear for the hearing, and their fraudulent activities were evident, making the penalties justified, legal, and proper.

5. Imposition of Penalty on the Custom House Agents:
The Tribunal also addressed the penalties imposed on the Custom House Agents, including Shri Quimti Lal Sharma. It was noted that in a previous case involving similar circumstances, the penalty on Sharma was set aside. Following this precedent, the Tribunal concluded that the penalty on Sharma was not warranted.

Conclusion:
The Tribunal set aside the demand of duty along with interest and penalties on the importer, M/s Indian Acrylics Limited, as barred by limitation. The penalties on Shri D.R. Ahuja and Shri Quimti Lal Sharma were also set aside. However, the penalties on the exporter, M/s Supreme Castings Ltd, and its Director, Shri Gurkirpal Singh, were upheld.

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