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TMI Blog2006 (11) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Tax Appellate Tribunal, New Delhi (for short, 'the Tribunal') in C/Stay 2921-2925/04-NB(S) in A. No. C/638-42/04-NB(S), proposing following questions of law :- "(i)Whether the CESTAT is justified in applying ratio of the law laid down by the Bombay High Court in the case of Taparia Overseas (P) Limited v. UOI reported as 2003 (161) E.L.T. 47 (Bom.) for granting relief upon penalty, to original DEPB holder who committed fraud without distinguishing the fact that in the case of Taparia Overseas Hon'ble Bombay High Court decided the matter in respect of beneficiary of the DEPB i.e., to whom forged DEPB was transferred by the original DEPB holder? (ii)Whether the CESTAT is justified in allowing same treatment to the committee of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating authority in its order dated 28-4-2004 is as under :- "However, I find nothing on record to infer that M/s. Shiraj International Co. Amritsar had purchased the freely transferable DEPB scrip otherwise than in a bona fide manner and utilized the same towards debit/exemption of duty and there is nothing to suggest of his having colluded with the exporter who obtained the DEPB scrips by fraudulent manner. Therefore, I do not hold them liable to penal action under Section 112 of the Customs Act, 1962" 4.However, duty was directed to be recovered and penalty was imposed on the respondent-assessee. 5.On appeal to the Tribunal accepted the plea of the assessee that since penalty was not imposed on the importer for importing goods again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 527 and Allahabad High Court in Coolade Beverages Limited v. Commissioner of Central Excise, Meerut, 2004 (172) E.L.T. 451 and H. Guru Investment (North India) Pvt. Limited v. CEGAT, New Delhi, 1998 (104) E.L.T. 8. 8.Learned Counsel for the revenue relied upon judgment of the Calcutta High Court in ICI India Limited v. Commissioner of Customs (Port), Calcutta, 2005 (184) E.L.T. 339 and judgment of this Court dated 22-12-2005 in Golden Tools International v. Joint DGFT, Ludhiana, 2006 (199) E.L.T. 213, wherein this court upheld cancellation of DEPB and levy of penalty under Section 11(2) of the Foreign Trade (Development and Regulation) Act, 1992. This court observed :- "12.We are of the view that both the petitions are bereft of any mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icates were furnished by the petitioners or their representatives. What is material is that representations were made to the Directorate of Foreign Trade either by them or on their behalf; the Joint Director of Foreign Trade acted on these representations and issued the DEPBs. The petitioners were fully aware that remittances had not been received, through the bankers whose certificates had been furnished. It clearly shows the fraudulent motive. Being the ultimate beneficiaries of the DEPBs, they cannot be heard to say that they are innocent. 13.There is no substance in the plea that a DEPB cannot be cancelled after it has outlived its life. Sub-section (4) of Section 9 of the Act, confers upon the Director General or the authorized offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts. The section reads as follows : "3. Powers to make provisions relating to imports and exports. - (1) The Central Government may, by order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. (2) The Central Government may also, by order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the import or export of goods. (3) All goods to which any order under sub-section (2) applies shall be deemed to be goods, the import or export of which has been prohibited under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said two statutes conjointly, Section 11(2) of the Act would be clearly attracted. We are of the considered view that duty free imports made by the petitioners on the basis of DEPBs', fraudulently obtained, is tantamount to contravention of the provisions as engrafted in Section 11 of the Act and thus, no fault can be found with the orders levying penalties under the said Section." 9.We have considered the rival submissions and perused the record. 10.The Tribunal has not recorded any finding that the respondent-assessee did not commit any fraud, as alleged. Correctness of the finding that the transferee M/s. Shiraj International Company Limited did not commit any fraud, having obtained DEPB without notice of the fraud, is not in questio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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