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TMI Blog1998 (11) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... g clearance, Custom House received information that these licences had been obtained by Overseas Enterprises on the basis of fabricated documents which showed exports. Enquiries by the Customs at the Overseas Enterprises not showed existence of any firm located their and their further enquiries showed Overseas Enterprises or A.G. Khan purported proprietor of the firm not to be in existence. Subsequently, the licensing authority cancelled the licences on the ground that they were obtained on the basis of fraud, mis-representation of facts, and by producing forged documents when the licencee itself was fictitious. Enquiries by the Customs also indicated that Shyam Bihani, the proprietor of the appellant firm had colluded in obtaining and sell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were obtained by submitting fraudulent documents and were issued to non existing firm and relies upon the judgment of the Supreme Court in Fedco Private Ltd. and Another v. S.N. Bilgrami and Others - 1999 (110) E.L.T. 92 (S.C.) = AIR 1960 SC 415 and the Tribunal decision in Kanta International v. Collector of Customs - 1997 (92) E.L.T. 487. He narrates various activities of Shyam Binani particularly the fact that the amount paid by Shyam Binani in the licences to show that Shyam Binani colluded in obtaining the licences and hence liable to penalty. 5. In East India Commercial Co. Ltd. v. CC, the Supreme Court was concerned with imports made under licence which was stated to have been obtained by mis-representation. It said that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be fulfilled. The licence is therefore non est. Hence it cannot be utilised as for import for the goods in question. The Collector has therefore rightly ordered confiscation of the goods. It was not argued before us that absolute confiscation was not justified nor is it contended that the goods are not prohibited goods. We therefore confirm the confiscation of the goods. 6A. The next issue is liability to penalty on the appellant. The Collector has emphasised various aspects to support his conclusion that the appellant colluded in obtaining the licence therefore was not a bona fide transferee. These are that B.L. Toshniwal who has signed as proprietor of Suraj Sales Corporation on the two bills of entry filed stated that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the broker denied any role in the deal of these two licences. The Collector notes that the amounts paid by Binani is far less than what they would have paid Rs. 76.50 lacs taking into account the duty free clearance that would be available. 7. It is contended on behalf of Binani that the entire transaction of O.P. Marda and there was nothing to show that Binani had any connection with Overseas Enterprises or its proprietor. The appellant bought the goods at the market rate prevailing which varies from time to time. Marda himself says some knowledge of the transaction. He says that the appellant had licences from Madan Jain whom Marda knows. No action has been taken to interrogate Madan Jain. No penalty has been imposed on the person who i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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