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TMI Blog2018 (6) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... te specifically why he agrees or disagrees with them. The impugned order in so far as it relates to the appeal filed by revenue against the transferee importers is concerned is not a speaking order and is therefore set aside and the matter remanded to the original adjudicating authority to determine the issue afresh with cogent reasons and speaking order - matter on remand. Penalty u/s 112(a) and 114(i) of the CA 1962 - Held that:- The persons whose signatures were forged were stated to be scientists and in-charge of SASMIRA, authorized signatory of steamer agents, appraisers, IAO, Clerks, Assistant Collectors Preventive Officers etc. in his statement he also stated that besides forging the signatures on bills of lading and SASMIRA test report, he had also forged the signatures of the Appraising Officers in the Part–F of the DEEC book for the purpose of auditing. Shri Ashok Pokharkar had also admitted in his statement that Shri Balchander V. Jhadav had forged the documents - the penalty on Sh Jhadav is fully justified. Part matter on remand - partly in favor of Revenue. - C/193, 624, 752/2008, C/87685/2017 to C/87709/2017 - Final Order No. A/86669-86696/2018 - Dated:- 11-6-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the original, duplicate and export promotion copy of shipping bills submitted to customs. In the second set on invoices the weight and compositions of the goods was enhanced and thereby misdeclared. 3. M/s Amol Shipping Agency (M/s ASA), operating under the license of M/s Roopmohan Enterprises, a licensed Custom House Agent was handling the bulk of the export clearances of the consignments of fabrics for various exporters. Search was conducted at the office, residence of the proprietor and godown of M/s ASA and certain incriminating documents were recovered. Statement of Shri Vasant Baburao Pokharkar, brother of Ashok Baburao Pokharkar was recorded and he admitted that they were fabricating test reports and shipping bills for extra monetary consideration. He also submitted a list of exporters for whom they had fabricated the documents. Statement of Shri Ashok Pokharkar, the proprietor of M/s ASA was recorded and he admitted to have fabricated the test reports of SASMIRA. He stated that he had got blank test reports of SASMIRA from one Subhash Agarwal of M/s Asheema Fasions Pvt. Ltd, which he was using to fabricate the test reports. He further revealed the modus operandi of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployee Balachandra Jhadav. Further he would also forge and fabricate the EP copy of the Shipping bill by enhancing the composition and weight of the goods. These were later submitted for the purpose of Audit to the Customs Department. 6. The Advance licenses were obtained from DGFT by submitting these forged shipping bills. 45 licenses were issued to M/s Asheema Fashions Pvt. Ltd. and 10 licenses were issued to M/s Asheema Exports. Similarly 13 licenses were issued to M/s Ashok Fashions. The advance licenses were later transferred to different importers who had caused imports against these licenses. Details of these importers are as follows: Sr No Transferees in the case of M/s Asheema Fashions Pvt. Ltd. and M/s Asheema Exports Transferees in the case of M/s Ashok Fashions 1 M/s Goyal Impex M/s Veekay Torcitoi Pvt. Ltd. 2 M/s Ishaan Impex M/s G.D. Impex 3 M/s Ashutosh Textiles M/s Goyal Impex 4 M/s R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the various importers who had imported against the Advance Licenses obtained through fraud. Revenue is in appeal against the said orders. 9. Ld AR argued that while absolving the importers of all the charges, the Adjudicating Authority held that it would be against the various judicial pronouncements cited by the Transferee Importers to require the transferee to pay customs duty on the goods imported against the subject license, but he has not discussed any of these judgements. It was argued that the finding of the Adjudicating Authority in this regards are not legally correct and proper. She argued that once it has been established that the Government revenue has suffered, it need to be indemnified, by the transferee and by the license holder. One cannot transfer a better title than he himself possesses and hence the transferee of the licence cannot claim to be in better position than the license holder. Transferee of the license who is the importer in this case cannot escape the liability on imported goods arising out of non-fulfillment of export obligation and is required to pay duty which has been demanded from them. She relied on the decision of the Hon ble High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in it was held that when the original license holder had deliberately suppressed the facts and made willfully wrong declaration to the licensing authority to obtain the endorsement of transferability of the same while transferring the licenses, extended period of limitation would be available to the authorities for the purpose of claiming duty from the transferee of the license. 14. She argued that the Hon ble High Court of Punjab and Haryana in the case of Friends Trading Co. vs. Union of India reported in 2010 (254) ELT. 652 (P H) that the duty can be demanded on the importer who purchased DEPB scrips obtained by producing forged documents. She pointed out that the above judgement of High Court was upheld by Hon ble Supreme Court as reported in 2012 (281) ELT. A106 (SC). She pointed out that the Hon ble High Court of Punjab and Haryana in subsequent case of Friends Trading Co. vs. Union of India reported in 2011 (267) ELT. 33 (P H) held that importer steps into the shoes of seller of the forged documents and does not stand on a better footing and cannot be allowed to retain benefit illegally obtained. Fraud or suppression continues if document is not genuine and contrary in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority for violation of the conditions of notification no. 204/92-Cus dated 19.5.1992. She relied on the decision of Tribunal in the case of M/s Eastern Silk vs. Commissioner of Customs (Airport), Kolkatta, while following the principles laid down by the Hon ble Supreme Court in the case of Commissioner of Customs, Hyderabad vs. Pennar Industries and Others reported in 2015- TIOL-162-SC-CUS it was held that even if the licensing authority have not taken any action in respect of DFIA licenses, still the Customs Authority can demand duty. 18. In respect of penalty she argued that once goods are held liable to confiscation, penalty under section 112 is automatically attracted. Similarly once the demand is confirmed under section 28 of the customs act invoking extended period, then mandatory penalty under section 114 A is also attracted. 19. The Learned Counsel for the transferees submitted that they were bonafide transferees. He relied on the fact that their bonafides have not been doubted. They were not part of any forgery or fraud. The licences were obtained from DGFT and they could not have doubted the licences issued by DGFT. He relied on the following decisions:- (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the various acts of commission and omission have occurred at the point of export and the transferee importers are not the parties actively concerned with the various acts of commission and omission made by the licence holder, at the point of exports. Therefore, there is no question of requiring them to pay customs duty on the goods imported against these licences, the import having been effected by them as a bonafide transferee of the respective licences. The bonafide transferees have presented before me various legal arguments stating that they are neither liable to customs duty nor to any penalty. I do not consider it necessary for me to go through the various arguments and discuss the various case laws furnished in support of their stand. It has already been concluded by me in the preceding paragraphs that, it is the licence holder, who is liable to pay customs duty in the respect of the input material imported against the said licences, even in cases where the actual import has been made by a person, other than the licence holder. 23. It is seen that both the sides have cited plethora of case laws which are relevant to the facts of the case. The impugned order does ..... X X X X Extracts X X X X X X X X Extracts X X X X
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