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TMI Blog2018 (5) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... ictim of the dealings as he did not know about the fake nature of the scrips. The penalties imposed on the appellant cannot sustain - Appeal allowed - decided in favor of appellant. - Appeal Nos. C/195 to 197/2012 - Final Order Nos. 41315-41317 / 2018 - Dated:- 20-4-2018 - Hon ble Ms. Sulekha Beevi C.S., Member (Judicial) And Hon ble Shri Madhu Mohan Damodhar, Member (Technical) Shri N. Viswanathan, Advocate for the Appellant Shri A. Cletus, Addl. Commissioner (AR) for the Respondent ORDER Per Bench Brief facts are that M/s. Rajeswari Enterprises filed two Bills of Entry for import of crude palm oil availing duty exemption under Notification No..21/2002 (Sl. No. 34). The importer filed four TRAs all dated 22.6.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applying the decision in the case of S.K. Colombowala Vs. Commissioner 2007 (220) ELT 492, when the case is settled before the Settlement Commission, then the same cannot be adjudicated against other co-noticees, that the case of all co-noticees comes to end once order of Settlement Commission is passed in respect of a person who files an application before the Settlement Commission. He therefore pleaded that the penalty imposed on the appellant cannot sustain. 3. It is also argued by him that mere forged nature of the scrip cannot lead to the conclusion that the appellant has any role in such fraudulent use of DEPB scrips. The appellant came to know of the fact of fraudulent nature of DEPB scrip only when the importing company and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant having acted as a broker for transfer and use of DEPB licence is liable for penalty. There is no requirement under section 112(a) to establish mens rea on the part of the offender. Even in the absence of mens rea, when the appellant has attempted to use the DEPB to make wrongful gain is liable to penalty. That therefore the impugned order does not call for any interference. 5. Heard both sides. 6. The ld. counsel for appellant has placed reliance on the decision in the case of S.K. Colombowala to argue that since the main importer has settled the matter before the Settlement Commission and the confiscation having been set aside, no case would survive against the appellant who is a co-noticee to the proceedings. This has been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in the case of CC Vs. Sanjay Agarwal 2011 (269) ELT 153 (Guj.). The Hon ble High of Gujarat in the said case observed that when there is no evidence of any direct involvement of the broker as regards forgery of the license, penalty cannot be saddled upon the broker for mere involvement in transfer of the license in the normal course of business. The relevant paragraphs are reproduced as under:- 10. On a plain reading of Section 112 of the Act, it is apparent that the same provides for penalty for improper importation of goods, etc. Thus any person who acts or omits to do any act in relation to goods so as to render such goods liable to confiscation under Section 111 or acquires possession of or deals with goods in the manne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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