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TMI Blog2017 (9) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... A of the customs act 1962. Demands raised under section 28B in respect of 39 BOE filed during the period August 1996 to January 2004 were issued vide the relevant show cause notice on 05.03.2013 - It has been argued that even though no time limit has been prescribed in the section 28B of the Customs Act it is settled position of law that the time limit applicable for demand of customs duty under section 28 ibid is also applicable to the recovery of amount under section 28B - Held that: - By considering time limit of five years specified under section 28, we find that the entire demand raised under section 28B in show cause notice dated 05.03.2013 becomes hit by time bar. Consequently, entire demand confirmed by the adjudicating authority with reference to show cause notice dated 06.03.2013 are hit by time bar and hence is to be set aside. Consequently, there will also be no justification for imposition of any penalties. The levy on penalty in terms of show cause notice dated 08.07.2011 has been challenged by the CHA on the ground that they had filed the documents before the Customs authorities for clearance of goods on behalf of the importer M/s. Anurag Trading Co. only on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which goods were allegedly imported by M/s. Anurag Trading Co. without payment of duty on the basis of forged customs duty exemption certificate. Vide the above show cause notice customs duty amounting to ₹ 21,05,024/- was proposed to be recovered. Further, penalties were proposed under section 112(a) and 114 A of the Customs Act. Shri Kailash Gupta, Director of M/s. Trinetra Impex Pvt. Ltd., the CHA was also proposed to be penalized. 4. After undertaking further investigation another show cause notice dated 06.03.2013 was also issued in respect of 39 Bill of Entries filed by M/s. Anurag Trading Co. during the period 14.08.1996 to 23.11.2006. It was alleged that goods covered by these 39 Bill of Entries were cleared without payment of duty on the basis of forged CDEC but the customs duty involved was recovered by M/s. Anurag Trading Co. from OEF. Accordingly, the amount of ₹ 2,19,52,108/- was proposed to be recovered under section 28B of Customs Act 1962. Both M/s. Anurag Trading Co. as well as Shri Kailash Gupta, MD of CHA were proposed to be penalized. After due process of adjudication the impugned order came to be passed by the Commissioner. Aggrieved by the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period on 14.08.1996 to 23.11.2006 is hit by limitation as it is badly delayed. 8. The M/s. Trinetra Impex Pvt. Ltd. in the appeal filed by them has submitted that they had filed the relevant Bills of Entry on the basis of imported documents along with original exemption certificate issued by OEF Kanpur. Hence, they cannot be held responsible for any fraud committed on the exchequer by the importer. Even in the proceedings, under CHALR, they have been imposed only penalty and their license was not revoked. Further, it is also argued that in the charge sheet filed by the CBI who investigated the fraud, has cited Shri Kailash Gupta, only as a witness and not as accused. In view of the above, he prayed for setting aside the penalty imposed on them. 9. The Ld. DR supported the order. He argued that this was the case of fraudulent claim of the customs notification no.39/1996-Cus by submitting fabricated CDECs. It has been confirmed by the GM, OEF categorically that the ordinance factory has never issued any such CDECs. Consequently, the demand of customs duty raised under show cause notice dated 08.07.2011, which covers the 5 bills of entries for imports is to be sustained along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any such statements. Further, it is seen that Shri Shyam Mehrotra, Proprietor of M/s. Anurag Trading Co. has admitted in his various statements before the investigating officers that the goods were imported without payment of duty on the basis of the CDECs. 13. Upon careful consideration of the entire facts of the case on record, and perusal of record, we find that the appellant M/s. Anurag Trading Co. have imported goods covered by the five BOEs without payment of duty fraudulently claiming the benefit of notification no. 39/1996 on the basis of CDECs which have not been issued by the OEF Kanpur. The claim of the appellant that such CDECs were furnished to them by various officials of OEF have been disproved by the investigation carried out by Revenue. In fact, the investigation carried out by Revenue has brought out the fact that OEF Kanpur has not issued any CDECs authorizing duty free import. In view of the above discussion, we are of the view that the customs duty demands raised in show cause notice dated 08.07.2011 which have been upheld by the adjudicating authority needs to be sustained along with penalties imposed on M/s. Anurag Trading Co. along with interest under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice dated 05.03.2013 becomes hit by time bar. Consequently, entire demand confirmed by the adjudicating authority with reference to show cause notice dated 06.03.2013 are hit by time bar and hence is to be set aside. Consequently, there will also be no justification for imposition of any penalties. 17. In view of the above discussion, we pass the following order: The demand for customs duty under section 28B along with penal consequences are set aside with reference to the show cause notice dated 06.03.2013. 18. In appeal no.C/53509/2015 filed by the CHA M/s. Trinetra Impex Pvt. Ltd. they challenged the imposition of penalty of ₹ 5 lakhs under section 112 (a) with reference to the show cause notice dated 08.07.2011. Further, they have also challenged the penalties of ₹ 10 lakhs under section 112(b) and ₹ 5 lakhs under section 114 AA in respect of show cause notice dated 06.03.2013. 19. The levy on penalty in terms of show cause notice dated 08.07.2011 has been challenged by the CHA on the ground that they had filed the documents before the Customs authorities for clearance of goods on behalf of the importer M/s. Anurag Trading Co. only on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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