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TMI Blog2016 (11) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... ocessors. In the instant case, we find that the DEPB scrips have been obtained by forging the shipping bill and BRC and therefore, the decision of Sumit Wool Processors can be distinguished on that count. We find that in identical circumstances where DEPB scrips purchased by the importer appellants were obtained by using forged shipping bills/BRCs, the recovery of duty was upheld by the Tribunal in the case of Dow Agrosciences. The decision of the Tribunal in the case of Sumit Wool Processors cannot be applied as the facts in the instant case. However the decision of the Tribunal in the case of V.M. Tex P. Ltd, Dow Agrosciences are in identical situation and therefore, relying on these decisions, the appeal of Sun Chemicals is dismissed. Imposition of penalty on Shri R.C. Jain - Held that: - The role of Shri R.C. Jain is limited to submitting forged BRC/shipping bill before the DGFT and obtaining the DEPB scrips from DGFT. Ld. counsel for Shri R.C. Jain has relied on the decision of the Hon'ble High Court of Gujarat in the case of Shah Alloys [2010 (3) TMI 781 - GUJARAT HIGH COURT] where it was held that - penalty against Shri R.C. Jain cannot be sustained. Appeal allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C/1122/04, Tribunal has already allowed their appeal vide order no. A/89407-89411/16 dated 25.08.2016 relying on the decision in Sumit Wool Processors (supra). Ld. counsel argued that the DEPB scrips involved in the case of Alpha Chemie were same as those involved in their case. Ld. counsel further argued that the goods were unconditionally released and therefore no confiscation could be ordered in view of the decision of the Hon'ble High Court of Bombay in CCE vs. Finesse Creation Inc. 2009 (248) ELT 122 which was upheld by apex court as reported in 2010 (255) ELT A120 (SC). 3. Ld. counsel for Shri R.C. Jain argued that they have not committed any fraud under the Customs Act if any forgery or fraud has been committed the same has been committed before DGFT and not before customs. In this regard, he relied on the decision of Hon'ble High Court of Gujarat in the case of CC vs. Shah Alloys Ltd. 2011 (269) ELT 323. He also relied on Hon'ble High Court of Gujarat in CC vs. Sanjay Agarwal 2011 (269) ELT 153 (Guj). 4. Ld. AR relies on the impugned order. He relied on the case of Dow Agrosciences India Pvt. Ltd. 2012 (283) ELT 524. Ld. AR distinguished the case of Sumit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument, he relied on the decision of the Hon'ble High Court of Kerala in the case of Neptune Trade Link 2012 (284) ELT 29 (Ker). He further argued that extended period can be rightly invoked in this circumstances, as has been held by the Hon'ble Supreme Court as Tata Iron Steel Co. Ltd. 2015 (319) ELT 546. 5. As regards Shri R.C. Jain, ld. AR relied on the decision of the Supreme court in the case of CC vs. G.P. Jaiswal 2015 (318) ELT 610. In the said case, Hon'ble apex court upheld the penalty on the person who had supervised the export stuffing of over-invoiced goods and received the payment. Similarly, in the case of Vaibhav Exports 2009 (244) ELT 527, Hon'ble High Court of Bombay has upheld penalty on one Hiralal Jain who was the real master mind in procuring and using forged licence. Ld. AR also relied on the decision in the case of Vijay Bhav 2014 (313) ELT 506 to assert that penalty can be imposed on the person who has obtained licence by forging documents. 6. We have gone through rival submissions. We find that in the instant case M/s. Sun Chemicals has purchased the DEPB scrips from market. The said DEPB scrips were obtained by submitting forged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresenting before DGFT and by submitting forged BRCs. It is seen that Tribunal in the case of Eastern Silk Inds has relied heavily on the decision of the Kolkata High Court in ICI India Ltd. 2005 (184) ELT 339. The said case was approved by the Hon'ble apex court in 2005 (187) ELT A31(SC). 6.1. In view of the above facts, we find that the decision of the Tribunal in the case of Sumit Wool Processors cannot be applied as the facts in the instant case. However the decision of the Tribunal in the case of V.M. Tex P. Ltd, Dow Agrosciences and Apar Ltd. are in identical situation and therefore, relying on these decisions, the appeal of Sun Chemicals is dismissed. 7. The role of Shri R.C. Jain is limited to submitting forged BRC/shipping bill before the DGFT and obtaining the DEPB scrips from DGFT. Ld. counsel for Shri R.C. Jain has relied on the decision of the Hon'ble High Court of Gujarat in the case of Shah Alloys (supra) and Sanjay Agarwal (supra). It is seen that in Sanjay Agarwal the case of Hon'ble High Court has held as follows:- 6. From the facts noted hereinabove, it is apparent that the allegation against the respondent is as regards his alleged involv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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