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TMI Blog2009 (6) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... not available and that no ‘bulletin’ was ever received by the department from the DGFT – bulletins with details of licenses supposed to be sent fortnightly by DGFT not received by Customs for years together – Limited verification done based on sepceimen signature of licensing authority – held that this was woefully inadequate - held that there can be no penalty on the appellants. - In the result, these appeals are allowed. - C/190-191/2008 - A/296-297/2009-WZB/C-IV/(SMB), - Dated:- 15-6-2009 - Shri P.G. Chacko, Member (J) Shri Prakash Shah, Advocate, for the Appellant. Shri Manish Mohan, SDR, for the Respondent. [Order]. - In the impugned order, which was passed in adjudication of a show-cause notice dated 5-4-2007, the learned Commissioner of Customs (Import) passed following order: "38.1 I hold that the goods imported vide B/E No. 6470 dated 17-11-1997 were imported without Special Import Licence in contravention of the provisions of Exim Policy Rules and Regulation. 38.2 I order confiscation of goods imported vide B/E No. 6470 dated 17-11-1997 valued at Rs. 24,31,636/- (Rupees Twenty four lakhs thirty one thousand [six] hundred and thirty six only) which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igations against the original licensee were commenced as early as in 1998, no enquiries were made against the transferees of the licence till 9-8-2006 when a summons was issued to Smt. Jagruti Jayraj Pandit, Finance Manager of M/s. RBS Home Appliances. A statement was recorded from Smt. Jagruti Jayran Pandit under Section 108 of the Customs Act, wherein she stated that a Special Import Licence had been obtained from M/s. Milan Enterprises. When confronted with documents issued from the office of the DGFT, Bhopal, she admitted that the said licence was a forged one. However, she did not accept the suggestion of the interrogating officer that their company was liable for consequences of the offence committed by the original licensee. Similar statements were given by other functionaries of M/s. RBS Home Appliances. A statement of one Shri Murari Shah, proprietor of M/s. Milan Enterprises was also recorded under Section 108 of the Customs Act. He denied having sold the licence to M/s. RBS Home Appliances. He also stated that he did not know M/s. Blue Star Enterprises. He also pleaded ignorance of the identity of the person (one Mr. Agarwal), from whom, according to Smt. Jagruti, the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n were imported, again, there was no doubt whatsoever and the goods were allowed to be cleared without any demur. Even in the show-cause notice, the department has no case that the appellants had imported the goods under the licence in question with any knowledge of its forged character. No allegation of any kind of complicity in the forgery committed by the licensee was levelled against the appellants. In the circumstances, the learned Counsel argues, it cannot be said that the appellants used the licence for clearance of the subject goods with any mens rea. Therefore, Section 112(a) of the Customs Act, 1962 is not invocable against them. The second ground raised by the learned Counsel is that the heavy delay involved in the issue of the show-cause notice has vitiated the entire proceedings. In this context, the learned Counsel refers to the Hon'ble High Court of Punjab and Haryana's decision in Neeldhara Weaving Factory v. DGFT, New Delhi - 2007 (210) E.L.T. 658 (P H) = 2007 (5) S.T.R. 404 (P H), wherein a penalty imposed on the writ petitioner after 14 years of certain default was set aside on the ground of delay. 4. On the other hand, the learned S.D.R is of the view that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority. This limited verification is done on the basis of specimen signatures of the said authority. Woefully enough, it is stated, the Customs department has not received any bulletin from the DGFT for years together. This fact is quite evident from a copy of SIL No. 0011315, dated 27-12-1996 available on record, which indicates that the Customs verification of the licence was done without a bulletin. 6 A decision has to be taken in this case on the aforesaid facts and evidence. 7. The question whether the redemption fine has to be sustained on the facts of this case requires to be addressed in view of the Tribunal's Larger Bench decision cited by the learned Counsel. That the decision is found to be in favour of the appellants. As the goods were admittedly not available for confiscation when the impugned order was passed, the fine has to be vacated inasmuch as it is not the Revenue's case that the goods were provisionally released to the importer against execution of bond or other undertaking. Ordered accordingly. 8. The remaining question pertains to the penalty imposed on the appellant under Section 112(a) of the Customs Act, 1962. For a penalty of this kind, it has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e genuineness of the transfer note issued by M/s. Milan Enterprises to M/s. RBS Home Appliances Pvt. Ltd. (appellant) was questioned by the latter when confronted with the said document under Section 108 of the Customs Act, 1962. In this scenario, I am of the considered view that there was a shift of onus of proof to the customs authorities. In the present case, even this burden has not been attempted to be discharged. In the circumstances, it will not be correct to apply to the present case the ratio of the decision of the Supreme Court in Aafloated Textile case (supra). The department has not succeeded in establishing that the appellants, by any commission or omission, rendered the subject goods liable to confiscation. They have not even made out a case of abetment of the offence of forgery of licence, against the appellants. In the result, the appellants succeed in their challenge against the penalties imposed on them. 9. At the same time, I have not found favour with the plea of the learned Counsel that the penalty should be set aside on the ground of heavy delay. The case law cited by him cannot be applied to the facts of this case. In the case of Neeldhara Weaving Factory ( ..... 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