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TMI Blog2019 (5) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... is not in respect of license obtained by fraud. The issue is in respect of mis-match between the declared unit price of imported goods on Bill of Entry and that computed on the basis of quantity and value mentioned in the license. The real issue is vis a vis the amendment to the said license to resolve the mismatch. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... notices were issued to the appellants denying the benefit of exemption under Notification No 203/92-Cus for the quantity in excess of that specified in the license and demanding the duty on the declared value in respect of that specified quantity. 2.5 The show cause notices were adjudicated by the Assistant Commissioner as per the orders referred in para 1, supra. 2.6 Aggrieved appellants filed the appeal before Commissioner (Appeals) which were dismissed. Aggrieved appellant filed these appeals before the tribunal. 3.1 In their appeal appellants have challenged the order of Commissioner (Appeal) stating that- a. Custom Authorities are not competent to question the decision of DGFT. The license was issued by DGFT to the transferor. The transferor has after completing the export obligations transferred the license to them on a valid consideration. Joint DGFT has clarified to transferor regarding correction in validity period of the license by permitting the request for revalidation and import part of DEEC was returned, as there was no need for any correction. b. By issuance of Circular No 23/96-Customs dated 19.04.1996, CBEC has sought to restrict the power and authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e beyond their jurisdiction, by demanding the duty in respect of the goods in excess of quantity mentioned in the license. 4.3 Arguing for the revenue learned Authorized Representative reiterated the findings of the Assistant Commissioner and Commissioner (Appeals). She submitted relying of the order of Apex Court in case Aafloat Textiles that at the time of procuring the license appellants should have determined what their entitlement to import was. It was for them to satisfy themselves with regards the value mentioned in the License vis a vis the quantity of goods. Since the quantum of goods in terms of quantity imported far exceeds the quantity mentioned in the license itself, the benefit of Notification 203/92-Cus has been rightly denied by the authorities below in respect of quantities in excess of those mentioned in the license. 5.1 We have considered the submissions made in appeal and during the course of hearing along with the impugned order. 5.2 The short question for consideration in the present appeals is "As to what determines the entitlement to duty free imports under a Value Based Advance License, the value mentioned in license or the quantity mentioned in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Director General, Foreign Trade has also been requested to issue suitable instructions in this regard." 5.4 From the perusal of the said circular following is evident:- i. On the VABAL, issued by the Licensing Authority, both quantity and value of imports permitted are mentioned. However the quantity restrictions mentioned in the license is applicable only in case of sensitive items and not in respect of all other items imported against the said license. ii. The quantity and value mentioned in the license can be used for determination of unit price of items imported and in case the unit value so arrived exceeds the declared import price by more than 20%, importer should be asked to justify. iii. In case the mismatch cannot be explained the matter should referred to the concerned licensing authority for taking corrective action. iv. The said circular does not direct the Custom Authorities to suo motto deny the exemption available under the said license in term of value in respect of non sensitive goods on the basis of the quantities mentioned in the license. 5.5 Tribunal has in case of Tata Iron & Steel Company [2004 (177) ELT 1004 (T)] held as follows: "9.We h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. They had also completed their export obligation. Therefore, there is no violation of the provisions of Customs Act. Customs authorities cannot go into the domain of licensing authority for taking action by modifying the value limit given in VABAL. In the circumstances, we do not find any merit in the order of the Commissioner and the same is set aside. Accordingly, the appeal is allowed." 5.6 In case of Pradip Polyfils P Ltd [2001 (173) ELT 3 (Bom)] Hon'ble Bombay High Court has held as follows: "7. We have heard Counsel on both the sides. In this case, it is not in dispute that pursuant to the application made by the petitioners seeking benefit of DEPB Scheme in respect of export of filter plates and accessories made of Polypropylene, two DEPB licences were issued by the DGFT in favour of the petitioners. The endorsement made on the licences clearly show that the DEPB licences have been issued against the export of Polypropylene filter Plates and accessories as contained in the shipping bills furnished by the petitioners. The said DEPB licences were required to be forwarded to the Customs for verification of the particulars set out in the shipping bills and necessary en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly applicable to a case of this nature. As per Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn. 2005 at page 721: Caveat emptor means "Let the purchaser beware." It is one of the settled maxims, applying to a purchaser who is bound by actual as well as constructive knowledge of any defect in the thing purchased, which is obvious, or which might have been known by proper diligence. 21." Caveat emptor does not mean either in law or in Latin that the buyer must take chances. It means that the buyer must take care." (See Wallis v. Russell (1902) 21 R 585, 615). 22." Caveat emptor is the ordinary rule in contract. A vendor is under no duty to communicate the existence even of latent defects in his wares unless by act or implication he represents such defects not to exist." (See William R. Anson, Principles of the Law of Contract 245 (Arthur L. Corbin Ed. 3d. Am. ed.1919) Applying the maxim, it was held that it is the bounden duty of the purchaser to make all such necessary enquiries and to ascertain all the facts relating to the property to be purchased prior to committing in any manner. 23. Caveat emptor, qui ignorare non debuit quod jus alienum emit. A maxim meaning " ..... X X X X Extracts X X X X X X X X Extracts X X X X
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