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TMI Blog2015 (10) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 89/2005-Cus relating to DEPB, the only condition relevant to the importer is condition No. (vii) which states that where benefit of exemption of duty is claimed by the person who is not Duty Entitlement Passbook Holder, such benefit shall be permissible only against specific amount of credit transferred by the DEPB holders. - in terms of the notifications there is no failure on the part of transferees availing duty benefits under these scheme. Procedure for transferability of the License/material imported against such scrips. - Held that:- authorities themselves are also responsible to the extent of not having checked the fraud at the time of exports. We should not be affected in our findings only by the fact that grant of benefit to transferees will encourage fraudsters. Transfer of DEPB scrips in the present cases will governed by the provisions of the statute, that is the Sale of Goods Act. In such a situation the Mumbai High Court decision in the case of Taparia Overseas will prevail. Resultantly, applying the ratio of Taparia, we are convinced that effect of misrepresentation in the present cases has not rendered the transaction between the original license holders and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /12-MUM C/428/12-MUM C/429/12-MUM C/430/12-MUM C/432/12-MUM C/433/12-MUM C/434/12-MUM C/436/12-MUM C/442/12-MUM C/443/12-MUM C/461/12-MUM C/462/12-MUM C/464/12-MUM C/465/12-MUM C/471/12-MUM C/474/12-MUM C/475/12-MUM C/476/12-MUM C/486/12-MUM C/488/12-MUM C/489/12-MUM C/491/12-MUM C/514/12-MUM C/515/12-MUM C/517/12-MUM C/543/12-MUM C/579/12-MUM C/581/12-MUM C/583/12-MUM C/669/12-MUM C/683/12-MUM C/686/12-MUM C/687/12-MUM C/689/12-MUM C/690/12-MUM C/692/12-MUM C/696/12-MUM C/701/12-MUM C/705/12-MUM C/706/12-MUM C/707/12-MUM C/708/12-MUM C/734/12-MUM C/85411/13-MUM C/85413/13-MUM C/85410/13-MUM C/85415/13-MUM C/85416/13-MUM C/85417/13-MUM C/85418/13-MUM C/87732/13-MUM C/87985/13-MUM C/87731/13-MUM ARAWALI ENTERPRISES JIL PACK CELLO HOME PRODUCTS BHILOSA INDUSTRIES PVT LTD WIMPLAST LTD SHIVAKRITI IMPEX PREETY ENTERPRISES LUCKY TRANSPORT DEEP TRANSPORT RAMANAND KEDARNATH INTERNATIONAL CRYSTAL CROP PROTECTION PVT LTD ADITYA RAYON LAXMI TEXTILES SHREE BALAJEE TEXTILE MILLS SHRI YATIN AUDIO VISION KASYAP INTERPRISES SILVER WING INVESTMENT & TRADING CO PVT LTD RAVI ORGANICS LTD VARDHAMAN STAMPING PVT LTD CENTURY ENKA LTD UAL INDUSTRIES LTD SAGAR DRAPE FORD INDIA PVT LTD INEOS ABS (INDIA) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The DEPB scrips were sold to various transferees on the basis of endorsement of transferability by the DGFT. Appellants in the present appeals are such transferees of the DEPB scrips, DFIA licenses and Focus Market scrips. The transferees imported the goods against such scrips and availed the duty credit/exemption available under the scrips under Notifications such as 89/2005-Cus, 40/2006-Cus. The gross inflation in the FOB value of exports resulted in excess duty credit availability on the DEPB scrips. Importers/transferees who made imports under these scrips could therefore avail the credit obtained fraudulently resulting in loss of Revenue to the Government. The investigation by DRI culminated in issue of show cause notices to the exporters and the transferees/importers of the DEPB/DFIA documents. The impugned orders have been passed holding the goods exported and imported liable to confiscation. The demand of duty has been confirmed against the importers i.e. transferees of the scrips under Section 28 alongwith confirmation of penalties under Section 28AB. Penalties have also been imposed on the exporters and importers under Section 112/114A. When the matter was investigated an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the licenses cannot affect the imports made prior to such suspension and cancellation. Reliance was placed in this behalf on the following judgments: (a) East India Commercial Company Ltd vs. CC - 1983 (13) ELT 1342. (SC) (b) UOI vs. Sampat Raj Dugar - 1992 (58) ELT 163 (SC) (c) CC vs. Sneha Sales Corporation - 2000 (121) ELT 577 (SC) (d) Chemi Colour Agency and another vs. CC IE - 1987 (30) ELT 175. (e) M. Lallubhai & Co v Collector 1989 (43) ELT 127: (f) K. Uttamlal (Exports) Pvt. Ltd. vs. Union of India - 1990 (46) ELT 527. (g) Kantilal Manilal and Company versus Union of India - 1994 (69) ELT 240 (h) Wearon Exports Private Limited vs. Union of India - 2004 (163) ELT 149 (i) CC v Jupiter Exports - 2007 (213) ELT 641 (j) Taparia Overseas P. Ltd v UOI - 2003 (161) ELT 47 (k) Ajay Kumar & Co v CC - 2006 (205) ELT 747 upheld in 2009 (238) ELT 387. (l) CC v Patiala Castings P. Ltd - 2012 (283) ELT 269 (m) Binani Cement Ltd. Vs. CC - 2010 (259) ELT 247 upheld by Gujarat High Court in tax appeal No. 832 of 2009 by order dated 30-6-2010 (n) Prayagraj Dyeing & Printing Mills P. Ltd. Vs. UOI - 2013 (290) ELT 61 (Guj) (o) Commissioner Vs. Rajnarayan Jwalap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made transferable and other conditions of the Notification do not apply to the transferee. Therefore the benefit of Notification would be available to the transferee as held in the case of Goodluck Industries Ltd. Vs. CC [1999 (108) ELT 818]. This decision has been affirmed by the Hon'ble Supreme Court in [2000 (120) ELT A66 (SC)]. This view has also been approved by the Supreme Court in Jindal Dye Intermediate Ltd. Vs. CC [2006 (197) ELT 471 (SC)] (ix) In all the present cases, the Notice is beyond the normal period of limitation. Admittedly there is no allegation, evidence and finding of any fraud or mis-statement or willful suppression of facts on the part of the appellants and hence the larger period of limitation of 5 years prescribed in the proviso to Section 28 (1) could not be invoked against the appellants. The allegation of fraud is against the original license holder and not against the appellants. Accordingly as laid down in the following decisions, the larger period of limitation is not applicable against the appellants: (a) Commissioner Vs. Banani Cement Ltd. [2008 (231) ELT 177. This judgment is upheld by the Gujarat High Court reported in [2009 (238) ELT 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Tools (supra) will apply. (b) In case of Rathi Synthetics the imported goods were bought on High sea sale basis. Transferee had no knowledge about the fraud committed by the exporter. (c) In case of Miletha Impex it is stated that they neither received show cause notice nor opportunity of personal hearing. Therefore principles of natural justice have been violated. Further duty demanded is more than duty payable on the goods imported. (d) In case of M/s. Ineos ABS (India) it is stated that M/s. Nidhi Textiels who were one of the exporters had obtained the DEPB scrips fraudulently by falsification of records. According to Ld. Counsel, the judgment relied upon by the Ld. Special Counsel in the case of Friends Trading Company (supra) is based on different footing. This judgment distinguished the High court judgment in the case of Taparia Overseas holding that in the later judgment DEPB scrips were obtained on basis of falsification of records whereas in the case of Friends Trading Company, DEPB scrips were obtained fraudulently on basis of forged documents. Therefore their issue gets covered by the case of Taparia Overseas. Ld Counsel also relied on the case of Tejwant. Further h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Commissioner - Customs Appeal No. 501-504 of 2006 and on Shraveni Impex (supra). It was also submitted that in the case of Friends Trading Company relied upon by the Revenue, the show cause notice was issued only to the importer for recovery of custom duty. 6. Shri. V.K. Singh, Ld. Special Counsel appearing on behalf of Revenue made following submissions. (i) The investigation clearly established that the said exporters had indulged in the act of exporting low value made ups and fabrics in the guise of high value made ups and fabrics deliberately with an intention to avail undue and illegal exports benefits under DEPB/DFIA schemes. In doing so, the exporters created fictitious/bogus records of purchase (invoices) of the goods eventually exported by them, so as to create a fictitious record of having purchased the goods from fictitious/non existing local suppliers at much higher values than the real price paid for purchase thereof from local shops in Surat etc. Further an element of 11% brokerage was also included in the said invoices to further increase the recorded cost of procurement though no such brokerage was ever paid. Further in order to get back the money shown to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnational Ltd. Vs. CC 2012 (282) ELT 67 (Tri-Chennai) an assessee acting in defiance of law has no right to claim innocence when he fails to exercise due care and diligence. The contention of the appellants that benefit of the DEPB scrips should not be denied to the transferees leads to a very dangerous preposition. Such a legal interpretation would encourage the fraudsters to obtain DEPB scrips or any other benefit by fraudulent means and then sell it to get away from the arms of law. (iv) It is a matter of fact that the licences acquired by the exporters fraudulently are sold at a cheaper rate and hence any prudent person who acts diligently will not acquire such licences. Therefore, the contention of the appellant that they acquired the licences bona fide is not valid and hence the transferee (Importer) are liable for action under the provisions of Customs Act, 1962. (v) The facts of the present case are identical to the case of M/s. Friends Trading Co. Vs. UOI - 2010 (254) ELT 652 (P&H) which has been affirmed by the Hon'ble Supreme Court in 2010 (258) ELT A 72 (SC) and C.C. V. Sona Castings - 2010 (259) ELT 693 (Tri-Del) and Pee Jay International Vs. C/C. Amritsar - 2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of limitation could be invoked against the original holder of fraudulent or forged DEPB, the same could be invoked against successor or purchaser. Similarly the penalty is liable to be imposed on the transferees as held in [Apar Ltd Vs. CC - 2012 (276) ELT 534 (Tri. - Mumbai]). (viii) Further the Hon'ble Apex Court in the case of Tata Iron & Steel Co. Ltd. Vs. Commissioner of Customs, Mumbai reported at [2015 (319) E.L.T. 545 (SC)] has held that where fraudulent misdeclaration is made by the original licence holder by deliberately suppressing the facts, made wilfully wrong declaration to the licencing authority, extended period of limitation under Section 28 is available for recovery of the duty against the appellant who is a transferee of such licence though misdeclaration is made by original licence holder. (ix) Hon'ble Tribunal in the case of Dow Agro Sciences India Pvt. Ltd. Vs. CC [2012 (283) EKT 524 (Tri-Mumbai)] has held in para 9.28 that the distinction drawn by the learned counsel between a forged DEPB and a DEPB issued on the basis of forged documents is of no significance where the DEPB of the latter category is cancelled with retrospective effect by the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ign Trade Policy (hereinafter referred to as the said authorisation) from the whole of the duty of Customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and from the whole of the additional duty, safeguard duty and anti-dumping duty leviable thereon, respectively, under sections 3,8 and 9A of the said Customs Tariff Act, subject to the following conditions namely :- (i) that the description, value and quantity of materials imported are covered by the said authorisation and the said authorisation is produced before the proper officer of customs at the time of clearance for debit: Provided that in respect of resultant product specified in paragraph 4.55.3 of the Hand Book of Procedures (Vol.I) of the Foreign Trade Policy, the materials permitted in the said authorisation or a duty free import authorisation for intermediate supply, as the case may be, shall be of the same quality, technical characteristics and specifications as the materials used in the said resultant product. Provided further that in respect of the said resultant product the exporter shall give declaration with regard to the quality, technical characteristic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi, Raipur, Mandideep, Durgapur and Babarpur or through the Land Customs Station at Ranaghat, Singhabad, Raxaul, Jogbani, Nautanva (Sonauli), Petrapole, Mahadipur, Nepalganj Road, Dawki, Agartala, Sutarkhandi, Amritsar Rail Cargo and Attari Road or Special Economic Zone as specified in the notification issued under section 76A of the Customs Act, 1962 (52 of 1962). Provided that the Commissioner of Customs may, by special order or by a Public Notice and subject to such conditions as may be specified by him, permit import and export from any other seaport/airport/inland container depot or through any land customs station; (v) that the export obligation as specified in the said authorisation (both in value and quantity terms) is discharged within the period specified in the said authorisation or within such extended period as may be granted by the Regional Authority by exporting resultant products, manufactured in India which are specified in the said authorisation and in respect of which facility under rule 18 (rebate of duty paid on materials used in the manufacture of resultant product) or sub-rule 2 of rule 19 of the Central Excise Rules, 2002 or CENVAT credit under CENVAT cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or use, the said materials may be re-exported back to the foreign supplier within three years from the date of payment of duty on the importation thereof : Provided that at the time of re-export the materials are identified to the satisfaction of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, as the materials which were imported. Notification No. 89/2005-Cus., dated 4-10-2005 Duty Entitlement Pass Book - Exemption to imports thereunder In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods of description specified in column (2) of the Table below, when imported into India,- (a) from so much of duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as is in excess of the amount calculated at the rate specified in the corresponding entry in column (3) of the said Table; (b) from so much of additional duty leviable thereon under section 3 of the said Customs Tariff Act, as is in excess of the amount calculated at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in the notification issued under section 76A of the Customs Act, 1962 (52 to 1962) Provided that where the expiry of the Duty Entitlement Pass Book falls before the last day of the month, such Duty Entitlement Pass Book shall be deemed to be valid till the last day of the said month : Provided further that the Commissioner of Customs may, by special order and subject to such conditions as may be specified by him, permit imports and exports from any other sea port, airport, inland container depot or through any land customs station; (v) that where the importer does not claim exemption from the additional duty of customs leviable under section 3 of the Customs Tariff Act, 1975 (51 of 1975), he shall be deemed not to have availed the exemption from the said duty for the purpose of calculation of the said additional duty of customs; (vi) that the importer shall be entitled to avail the drawback or CENVAT credit of additional duty lveiable under section 3 of the said Customs Tariff Act against the amount debited in the said Duty Entitlement Pass Book; (vii) that where benefit of exemption from duty is claimed by a person, who is not a Duty Entitlement Pass Book holder, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been made or have been made partially. From the above, it is clear that transferability is allowed after endorsement to that effect by the licensing authority i.e. DGFT. We were shown documents which are Applications made for transfer of the license. The documents accompanying the application include shipping bills verified by the Customs authorities. We also observe that para 4.49 of the Hand Book of Procedures (2004-2009) provides that the Customs shall verify the details of export as per records before allowing import against DEPB. Thus it is seen that Customs are supposed to have verified the value of exports on the application for transfer of license as well as when they allowed import against the DEPB. We find that the goods in question are goods which are traded frequently; if the Customs had taken the trouble of delving into the records and made some inquiries, the obvious multiple fold over valuation could have been detected at the time of exports on basis of which DEPBs/DFIA Licences were granted as well as at the time of imports under the DEPBs/DFIA Licenses. We find that the applications for transfer contained documents such as shipping bills which are signed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise of the power conferred on it by Section 3 of the Act to provide for licences obtained by misrepresentation, among others, and it reads : In the circumstances, we must hold that when the goods were imported, they were imported under a valid licence and therefore it is not possible to say that the goods imported were those prohibited or restricted by or under Chapter IV of the Act within the meaning of Clause (8) of Section 167 of the Sea Customs Act. In case of Sampat Raj Dugar (supra), the Hon'ble apex Court held 21. The next question is whether the import of the said goods was contrary to law in any manner and whether the said goods are liable to be confiscated under the Customs Act. The only provisions relied upon by the appellants are Clauses (d) and (o) in Section 111 of the Customs Act which we have set out hereinabove. In our opinion none of these clauses are attracted in the present case. Clause (d) contemplates an import which is contrary to any prohibition imposed either by the Customs Act or any other law for the time being in force. No such prohibition can be pleaded in this case since on the date of the import the said goods were covered by a valid import l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the manner prescribed by law." 5. In the aforementioned decision of this Court it has been clearly laid down that in a case where the licence is obtained by misrepresentation or fraud it is not rendered non est as a result of its cancellation so as to result in the goods that were imported on the basis of the said licences and being treated as goods imported without a licence in contravention of the order passed under Section 3 of the Import and Export Act that fraud or misrepresentation only renders a licence voidable and it becomes inoperative before it is cancelled. In the present case the licences were cancelled by order dated December 18, 1986 after the goods had been imported and cleared. The Tribunal was, therefore, right in holding that the import of the goods was not in contravention of the provisions of Import and Export Order, 1955 and Import and Export (Control) Act, 1947 and the goods were not liable to be confiscated on that basis under Section 111(d) of the Act. The Special Counsel contended that these judgments of the Apex Court are distinguishable. In the case of East India Commercial Company (supra), he stated, it of about violation of post import cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchaser steps into the shoes of the seller and does not acquire the better title than the seller. On this basis the Hon'ble High Court denied the benefit of DEPB credit to the importer. In the former case the Tribunal relied on the case of Munjal Showa Ltd. and the case of M/s. Friends Trading Co. Vs. Union of India. In the case of Munjal Showa Ltd. the Hon'ble High Court considered and distinguished the cases of East India Commercial Co. Ltd., Sneha Sales Corporation, Taparia Overseas Pvt. Ltd. and Leader Valves Ltd. The Hon'ble High Court took the view that the judgment in the case of Sneha Sales Corporation and East India Commercial Co. Ltd. dealt with the confiscation and not with the payment of duty. We may examine these contentions of Ld. Spl. Counsel. As regards the case of Dow Agro Sciences India Ltd., we find that the DEPB was obtained as a result of a racket involving forgery of export documents which is not so in the present case. Secondly, we also note that the Hon'ble Member who delivered the judgment in the case of Dow Agro Sciences India Ltd took an opposite view in the case of Binani Cement Ltd. Vs. Commissioner of Customs, Kandla 2010 (259) ELT 247 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cases where the transaction of transfer of licence for a value without notice of alleged fraud arising out of mercantile transaction governed by common law. It was also held that import made under the valid licence could not be subjected to levy of customs duty as such it is not open for the Customs Authorities to withhold the clearance of the imported goods. In that case, the licence was suspended after the import of goods was completed. Same is the situation in the case in hand. Under these circumstances, having heard rival parties, we are in agreement with the submissions made by the petitioner that the issue in this petition is squarely covered by the judgment of this Court in the case of Taparia Overseas v. Union of India (supra) and the petitioner is liable to succeed on merits". Therefore we are not inclined to agree with the Special Counsel. 8.5 Here we would also mention about the discussion of the case of Taparia Overseas Pvt. Ltd. (Mumbai High Court) in the judgment in Dow Agro Sciences India Pvt. Ltd. The Tribunal held that the Taparia Overseas ltd. was dealing with REP Licenses whose transfer was governed by common law because the licenses were freely transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermined for ever. The party defrauded may keep the question open so long as he does nothing to affirm the contract." The question always is, has the person on whom the fraud has been practised, having notice of the fraud, elected not to avoid the contract, or, has he elected to avoid it? or, has he made no election? As long as he has made no election he retains the right to determine it either way, subject to this that if in the interval whilst he is deliberating, an innocent third party has acquired an interest in the property, or if in consequence of his delay the position even of the wrongdoer is affected, he will lose his right to rescind." ………………………………………………………………….. ................................................................ It is thus no doubt true that as a general rule, if a transaction has been originally founded on fraud, the original vice will continue to taint it, and not only is the person who has committed fraud is precluded from deriving any benefit under it, but an innocen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cases in hand. We also note that in the case of Hico Enterprises Vs. Commissioner - C/1345/2002-Mum the Larger Bench decided in a similar case that - "Thus, in view of the aforesaid discussion, we are of the considered opinion that the principles evolved in the case of Goodluck Industries and upheld by Apex Court and followed subsequently in other case, is to be made applicable to the case on hand, since it is based on sound principle of law. Consequently, we uphold he contentions raised by the appellants while negating the contentions raised by the Department. Therefore, the legal maxim LEX NON COGIT AD IMPOSSIBILIA can be invoked and benefit of the same be given to the transferee of the licence for claiming exemption under the Notification. The transferee cannot be called upon to fulfil the condition (v)(a) of the Notification No. 203/92-Cus. It is the original licencee, who has to satisfy the above referred condition, but not the transferee of the licence. In the result, the reference is answered accordingly". This decision was upheld by the Hon'ble Supreme Court in 2008 (228) ELT 161 (S.C.). In the present case the appellants being purchasers of Licenses f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it confers upon the transferee a right which is choate and perfected and exercisable immediately. 24. The Apex Court in Delhi Cloth & General Mills Co. v. Harnam Singh ,. A.I.R. 1995 S.C. 590, was pleased to hold that a 'debt' is property. It is a chose in action and is heritable and assignable and it is treated as property in India under the Transfer of Property Act. In the very same judgment the Apex Court ruled that it is necessary, however, to bear in mind that, under modern conditions, chose in action arising out of contract have two aspects: (i) as property and (ii) as involving a contractual obligation for performance. The property aspect is relevant for purpose of assignment, administration, taxation and the like, the contractual aspect for performance. Therefore, in our view, the credit entry in the D.E.P.B. cannot be described as an "actionable claim"................................................................... ...................................................................................... 27. ............. . In the submission of the learned Counsel for the petitioners, reliance on the judgment of the Vikas Sales Corporation (supra) by the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud or misrepresentation, may if he thinks fit, insist that the contract shall be performed, and that he shall be put on the position in which he would hav been if the representation made had been true. Exception: if such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless is not voidable, if the party whose consent was as caused had the means of discovering the truth with ordinary diligence. 19-A. Power to set aside contract induced by undue influence - When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused. Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the court may seem just. Therefore transfer of DEPB scrips in the present cases will governed by the provisions of the statute, that is the Sale of Goods Act. In such a situation the Mumbai High Court decision in the case of Taparia Overseas will prevail. Resultantly, applying the ratio of Taparia, we are convinced that effect of misr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of opinion that the provisions that license may be cancelled, if it is found, after giving a reasonable opportunity to the licensee to be heard, to have been obtained by fraud or misrepresentation is a reasonable restriction in the interest of the general public on the exercise of the fundamental right of citizen guaranteed under Article 19(1)(f) and (g) of the Constitution. The cancellation being under a valid law there can be no question of any right under Article 31 of the Constitution having been infringed". Secondly the issue was whether the cancellation could have been done without allowing inspection of records. The court held that the order of cancellation was made in utter disregard of principles of natural justice, without expressing opinion on merits. This judgment has no bearing on the facts of the present case before us. In that case there was no situation of transfer of licenses. The Apex Court never considered whether duty liability can be fixed on the transferee of licenses which were obtained by mis-representation by the transferor. Reliance on this judgment does not support the cases of the Revenue at all. The Reliance on the case of Ram Preeti Yadav (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a statute. So far as the order shows, no argument was addressed to the Court on the question or not whether any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a PG NO 939 pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12 th edn. Explains the concept of sub silentio at p. 153 in these words: "A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio." In view of this judgment, we hold that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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