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TMI Blog2015 (9) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... erest and penalty being barred by limitation, hereby set aside – Decided in favour of Assesse. - Appeal No.C/296,298,691,692/2007; C/12315/2013 - Order No. A/10349-10353/2015 - Dated:- 22-4-2015 - Mr. P.K. Das and Mr. H.K. Thakur, JJ. For The Appellant: Shri Rakesh Jain, Advocate For The Respondent: Shri Jitendra Nair, Authorised Representative Per: P.K. Das 1. These appeals are arising out of a common order and therefore, all are taken up together for disposal. 2. Shri Rakesh Jain, learned Advocate is appearing on behalf of M/s Indian Acrylics Ltd, (in short the importer ) and Shri D.R. Ahuja, Superintendent of Central Excise. None appears on behalf of the other Appellants. There is no application for adjournment. Hence, we proceed to decide all the appeals. 3. The relevant facts of the case, in brief, are that the importer purchased transferable DEPB scrips on 25.08.2000 from open market, which was originally issued to M/s. Supreme Castings Limited (in short the exporter ) against their export. The importer imported Chemicals through Kandla Port on the basis of the said DEPB scrips, without payment of duty. In 2004, it was found that the exporter obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. In this context, the learned Advocate drew the attention of the Bench to the relevant portion of the Adjudication Order. He submits that on the identical issue, in the Appellant s own case, the Tribunal set aside the penalty as reported in 2010 (250) ELT 386 (Tri-Del.) (D.R. Ahuja Vs Commissioner of Customs, Amritsar). He also relied upon the various decisions as under:- a) P.N. Ram Vs Commissioner of C.Ex., Kanpur 2008 (225) ELT 294 (Tri-Del) b) Khem Singh Lalas Vs Commissioner of Customs, Kandla 2014 (307) ELT 718 (Tri-Ahmd) 7. The learned Authorised Representative for the Revenue strongly relied upon the decision of Hon ble Calcutta High Court in the case of ICI India Ltd Vs Commissioner of Customs (Port), Kolkata - 2005 (184) ELT 329 (Cal.). It is submitted that once it is established that the export documents are forged and the DEPB lincence was cancelled, the entire transaction is treated as void. It is immaterial as to whether the Appellants were involved in the fraud and therefore, the extended period of limitation would be invoked. Regarding the imposition of penalty on Shri D.R. Ahuja, he submits that the Appellant countersigned the documents without any veri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter or the agent or employee of the importer or exporter, the proper officer shall, within five years from the relevant date, serve notice on the person chargeable with duty or interest which has not been levied so. 10. In the present case, we find that the Adjudicating authority had not given any finding that the importer had not paid the duty by reason of collusion or any willful mis-statement or suppression of facts. The Adjudicating authority following the decision of the Hon'ble Calcutta High Court in the case of M/s. ICI India Limited vs. Commissioner of Customs (Port), Calcutta (supra) observed that while one may be not held liable for collusion or fraud and exposed to other penalty but could be liable to pay the duty and interest and other statutory consequences which cannot avoid and the demand of duty for the extended period of limitation was confirmed. In the present case, at the time of importation of the goods, the DEPB licence was valid, which was cancelled after about 4 years. The Tribunal in the case of M/s Patiala Castings Pvt. Ltd (supra), in the identical situation, dismissed the appeal filed by the Revenue. It has been observed that there is neither any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw, such document is, at the most, voidable and is valid till it is set aside. A transaction that takes place on the basis of such document is good one and can even give a good title to the holder in due course for valuable consideration. At this juncture, we may profitably refer to the observations of the Supreme Court made in the case of CCE v. Decent Dyeing Co., reported in 1990 (45) E.L.T. 201 = (1990) 1 SCC 180 wherein, the Supreme Court held that it would be intolerable if the purchasers were required to ascertain whether excise duty had already been paid as they had no means of knowing it. It was further pointed out that duty of excise is primarily a duty levied on a manufacturer or purchaser in respect of a commodity manufactured or produced. As pointed out by a Division Bench of this Court in the case of Commissioner of Central Excise v. D.P. Singh reported in 2011 (270) E.L.T. 321, the judgment of the Supreme Court in the case of New India Assurance Company (supra), was distinguished, being one relating to a forged document which renders a document null and void, and as such, has no application to this type of cases. Similarly, reliance over the judgment of the Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 12. Regarding the appeal filed by Shri D.R. Ahuja, we find from the Adjudication Order that the Adjudicating authority observed that the Appellant had stated before the Adjudicating authority that he had countersigned the examination and let export orders, as a bonafide act. He has also emphasized about the rush of work on 31.03.2000. On perusal of the Adjudication order, we find that the Appellant had failed to discharge his duty. There is no material available that the appellant abetted the exporter for their gain and therefore, it would not come within the ambit of imposition of penalty under Section 112 (a) of the Act. There is no evidence that the Appellant was involved in any manner in respect of manipulation of the export documents. We also find that on the identical situation, in the Appellant s own case, the Tribunal set aside the penalty and allowed the appeal filed by the Appellant. The relevant portion of the said decision D.R. Ahuja (supra) is reproduced below:- 6. It appears from the statement of the appellant No. l that he has denied ante-dating of the examination report or out of charge report in respect of S/Bill No. 2277 dated 31-3-2000. The finding of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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