9911796707
TMI Blog2004 (11) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... s through Chennai Port during the year 1995, on payment of Customs duty and countervailing duty. As they are entitled for availing Modvat credit on the countervailing duty paid by them they availed the same. The details of credit availed are as follows :- S. No. B/E NO. DATE CREDIT AVAILED TOWARDS MODVAT RG 23A P-II S.No. 1. 004165; 18-4-1995 7,50,433-00 664 dt. 23-9-1995 2. 5720; 22-5-1995 2,21,855-00 519 dt. 19-8-1995 3. 72430; 12-12-1995 3,51,254-00 132; dt. 4-6-1996 TOTAL 13,23,542 Investigations conducted by the Special Intelligence and Investigation Branch (SIIB) Air Cargo Complex Chennai reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned SDR appeared for the Department. 4. The learned Advocate relying on the decision of this Tribunal in the case of Hetero Drug Ltd v. CC Airport Chennai [2004 (168) E.L.T. 211 (Tri. Bang)] urged that once the Demand Drafts drawn in favour of the Commissioner of Customs have been sent by the appellant, the duty in respect of the consignments is deemed to have been paid on the date the DD is deposited with the Customs Authorities. He also relied on the decision of the Larger Bench of the Tribunal in the case of CC, Jaipur v. Genus Overseas Electronics Ltd. [2003 (155) E.L.T. 541 (Tri-LB)], wherein it is held that the payment of duty by cheque would be the date of tender of the same and not realisation. Therefore, the date of tender of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Modvat credit is not admissible and the same should be recovered. 6. On a careful consideration of the matter, we find that the issue is fully covered by Hetero Drugs case cited above. The fact of payment of duty by DD in the name of the Commissioner of Customs is not denied. It is the Customs House Agent who committed fraud on the Exchequer by misusing the money paid by the appellant. The moment the DD in the name of the Commissioner of Customs is credited, the duty should be deemed to have been paid by him. If the amount paid by the appellant had been used for the purposes other than for legitimate clearance of the goods of the appellant, connivance of the Departmental Officers could not be ruled out. Under these circumstances there i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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