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TMI Blog2011 (5) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 appeals have been filed against a common adjudication order and, therefore, they are being taken up together for disposal. 3. The adjudicating authority vide the impugned order confirmed the demand of Rs. 72,25,465/- under Sec.28 of the Act alongwith interest on M/s. Apar Ltd., the appellant. The adjudicating authority also confiscated the seized imported goods valued at Rs. 1,42,56,626/- under Sec.111(d) and 111(o) of the Customs Act and allowed release of the same on payment of redemption fine of Rs. 20 lakhs. A penalty of Rs. 72, 25,465/- was also imposed on M/s. Apar Ltd under Sec. 114A of the Act. Penalty of Rs. 5 lakhs on Shri K.N.Desai, penalty of Rs. 3 lakhs on Shri R.G.Avasthi and penalty of Rs. 2 lakhs on Shri C.Pinto were imposed under Sec.112(a) of the Act. 4. The brief facts of the case are that, the appellant M/s. Apar Ltd. purchased 4 DEPB scrips through a broker namely Kirit V.Kamdar(now Dead). The appellant M/s. Apar Ltd. made import of goods under the DEPB scrips so purchased. The goods were assessed by giving benefit under the DEPB scrips. Thereafter, it was found that the DEPB scrips under which the duty benefit was claimed in respect of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H). 8. In respect of confiscation, the contention of the Revenue is that as the goods were imported under the DEPB scrips which were found to be obtained on the basis of forged documents, the goods were liable to confiscation and the appellants were also liable for penalties. 9. We find that the admitted facts of the case are that, 4 DEPB scrips were obtained by submitting forged documents. M/s. Apar Ltd made import of goods and claimed the benefit under these DEPB scrips. We find that the issue, whether the benefit of DEPB scrips which were obtained by submitting forged documents is to available to the importer, is now settled by the tribunal in the case of Friends Trading Company vs. CC, Amritsar reported in 2006(202)E.L.T. 611 (Tri-Del.) The importer filed appeal before the Hon'ble Punjab Haryana against the above decision and the same was dismissed reported as Friends Trading Co. vs. Union of India reported in 2010(254) E.L.T. 652( P H). The Hon'ble High Court has held as under:- "2 The asessee imported goods against DEPB Scrips without payment of duty. It was later found that DEPB Scrips were obtained by producing forged bank certificate of expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled principle of common law that a purchaser steps into the shoes of the seller and does not acquire better title than the seller. This principle has also been recognized under Section 27 of the Sales of Goods Act, 1932. 20. The charge of duty is on the goods under Section 12 of the Act unless a case of exemption is made out, irrespective of intention of any person. xxx xxx xxx xxx 24. For the purpose of duty, the Tribunal has clearly held that the documents being forged, the appellant could not be allowed to take advantage of exemption. The Tribunal noticed that the firm with whom the appellant entered into the transaction was not traceable. The appellant itself had come to the conclusion that the documents were forged. In these circumstances, if further opportunity has been given to the appellant on its own asking and for its own benefit, we do not find any error in the course adopted by the Tribunal so as to give rise to substantial question of law sought to be raised." 4.We also made a? reference to judgments of the Hon'ble Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853 and Commissioner of Customs v. Essar Oil Ltd. - 2004 (172) E.L.T. 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds Trading Co. vs Union of India reported in 2011(267)E.L.T. 33 (P H), the Hon'ble High Court has held as under :- "We are unable to accept the submission. Finding recorded by the Tribunal, reproduced above, shows that action of the petitioner was not bona fide. In any case, the proviso is not limited to action of an importer who comes forward to take advantage on the basis of fraudulently obtained or forged DEPB, it also covers action of the predecessor of the importer. Importer who steps into the shoes of seller of forged document does not stand on better footing and cannot be allowed to retain benefit illegally obtained. Taint attaching to the document on the basis of which benefit is taken is not washed of. Fraud or suppression continues if document is not genuine. Any other interpretation will defeat the intendment of the proviso to Section 28 and will enable fraud to be perpetuated without any remedy. Even if case of criminal liability or penalty may stand on different footing, purchaser or successor of fraudulently obtained DEPB stands in the same position as his predecessor. If the extended period of limitation could be invoked against the original holder of fraudu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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