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TMI Blog2018 (1) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... at in the case of DEPB scrips obtained by fraud and forgery and where the transferee of these scrips are not a party to the fraud and were obtained on payment of full price from the open market on bonafide belief, the transferee is not liable to duty, penalty and interest - appeal allowed - decided in favor of appellant. - C/158/2010 - Final Order No.40093/2018 - Dated:- 11-1-2018 - Ms. Sulekha Beevi, Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Ms. M Swarupa, Advocate for the Appellant Shri K. Veerabhadra Reddy, JC (AR) for the Respondent ORDER Per Bench The facts of the case in brief are that the appellant had imported duty free materials under 8 DEPB scrips in December 2000, on the strength ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DCW Ltd. Vs. CC, Tuticorin - 2009 (241) ELT 421 (Tri.-Chen.) iv) CC Vs. Binani Cement Ltd. - 2009 (238)ELT 33 (Guj.) v) India Acrylics Ltd. Vs. CC, Kandla 2015 (325) ELT 753 (Tri.-Ahmd.) affirmed by the Hon ble Gujarat High Court 2016 (336) ELT 474 Guj.) v) CC, Amritsar Vs. Gopi Chand Krishnan Kumar Bhatia 2013 (295) ELT 739 (Tri.-Del.) 3. On the other hand, Ld. AR, Shri K. Veerabhadra Reddy, JC, drew our attention to the ratio of the Apex Court in the case of ICI India Ltd. Vs. Commissioner - 2005 (184) ELT 339 (Cal.), which has held that credit can be avail only on the strength of a valid DEPB and if the same is forged, it is non est, no credit can be derived thereunder. Ld. AR also submitted that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad paid full price and accordingly have availed the benefit. Merely because at a later stage, the DEPB has been found to be fabricated and fake on the basis of BCER the assessee-respondent could not be deprived of the benefits which were legitimately available to them. It is also worth noticing that the assessee-respondent was never issued any show cause notice before cancelling the DEPB which was obtained by M/s. Parker Industries and obviously the notice was also to be issued to them alone. We are further of the view that notice under Section 28 of the Customs Act could not be issued to the assessee-respondent because a period of six months stipulated by Section 28 of the Customs Act stood already expired and the rights of the parties had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt, it needs mention that M/s. Binani Cement Ltd. acted upon the DEPB licences believing that they were legally valid documents under which they could claim benefit. The Revenue also acted upon the transaction with the same belief. I am of the considered view that it is not open to the Revenue to say that the DEPB licences used by the importer were not legally valid documents at the time of the imports. 5.3 We further find that in the case of CC, Amritsar Vs. Vallabh Design Products - 2007 219) ELT 73 (P H) , the Hon ble P H High Court held that in the case of DEPB scrips obtained by fraud and forgery and where the transferee of these scrips are not a party to the fraud and were obtained on payment of full price from the open mark ..... X X X X Extracts X X X X X X X X Extracts X X X X
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