9911796707
TMI Blog2024 (10) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... broker M/s. Milan Overseas and they had taken the requisite precautions before buying the said license from the open market i.e. the IEC verification from DGFT website, particulars of license details from DGFT website, checking of license, registration and balance from the Customs Department, all the payments were made through Bank and relevant invoices of Milan Overseas, bank statements, bills of entry and copy of license were also submitted. Admittedly and undisputedly the alleged fictitious exports and fraud have been allegedly committed by the exporter/original license holder and its proprietor, and there is no allegation or evidence that the appellant was aware about the alleged fraud perpetrated by the exporter, in the circumstances, duty forgone on the said license should be recovered only from the exporter/original license holder, however, duty demand has been confirmed against the appellant. It is observed that show cause notice is dated 28.1.2015 raised demand of duty for the goods imported during April 2010; the notice is thus issued invoking extended period of limitation provided under proviso to section 28 (1) of the Act, however appellant is bonafide transferee of lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounts to double jeopardy. 1.4 However, learned Additional Commissioner of Customs, Kandla confirmed the demand of duty against the appellant under proviso to section 28(1) of the Act along with interest, and further imposed penalty under section 114A of the Act and held the goods liable to confiscation under section 111(d), 111(j) and 111(o) of the Act. The appellant preferred an appeal to the Commissioner of Customs (Appeals) Ahmedabad who has upheld the said Order of Additional Commissioner by his Order dated 16.6.2016, hence the present appeal of the appellant. 2. Shri Anil Balani learned Counsel appearing for the appellant mainly submitted that authorities below have failed to appreciate the facts of present case wherein license was issued by the DGFT and that goods were not imported based on forged license; that absent any allegation of appellants knowledge or involvement with the alleged fraudulent licenses, appellant has to be held a bona fide transferee of license which was valid and subsisting on the date of import and clearance of goods, that authorities erred in not appreciating that Apex Court Judgment in the case of Aafloat Textiles (I) Pvt. Ltd 2009 (235) ELT 587 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of business, obtained from open market a Focus Market Scheme license issued by DGFT which was valid and not cancelled by the DGFT on the date of imports by the appellant is sustainable an whether the demand being under extended period is hit by limitation in the facts of the present case. 4.1 It is observed from the records of the case that the said license was issued and made transferable by the DGFT, and the same was valid and subsisting on the dates of imports and clearance of the consignments by the appellant. Further, customs have duly verified the said license before clearance of the consignments imported by the appellant. It is further noticed that in their statements recorded under section 108 of the Customs Act, Shri Sanjay Raturi, Manager (Taxation) and Shri Chandresh Shah, Manager (Logistics) of the Appellant inter alia stated that they had purchased the said license from broker M/s. Milan Overseas and they had taken the requisite precautions before buying the said license from the open market i.e. the IEC verification from DGFT website, particulars of license details from DGFT website, checking of license, registration and balance from the Customs Department, all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ICI India Limited v. Commissioner of Customs (Port), Kolkatta reported in 2005 (184) E.L.T. 339 (Cal.), wherein it is held that the credit available on the strength of a valid DEPB only and if the same is forged, it is non est, therefore there is no valid DEPB? (iv) Whether the CESTAT has erred in not appreciating the fact that in the matter of import under fake/fraudulent DEPB licence when the document itself having been found to be forged, whether there was collusion or fraud on the part of the importer in the issue of DEPB licences/Scrips becomes absolutely immaterial and irrelevant since no credit can be derived from a forged DEPB? 2. The facts stated briefly are that the importer purchased transferable DEPB scrips on 25th August, 2000 from the open market which were originally issued to M/s. Supreme Castings Limited (the exporter) against their export. The importer imported chemicals through Kandla Port on the basis of the DEPB scrips without payment of duty. In 2004, it was found that the exporter obtained the transferable DEPB scrips fraudulently by ante-dating the Shipping Bill No. 2216, dated 30th March, 2000 pertaining to cargo against shipping bill which was received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt. 5. This Court has considered the submissions advanced by the learned advocate for the appellant and has perused the order passed by the adjudicating authority as well as the impugned order passed by the Tribunal. 6. As can be seen from the impugned order passed by the Tribunal, the Tribunal has recorded that there is no dispute as regards the fact that the importer purchased DEPB scrips from the open market on 25th August, 2000 and imported chemicals from Kandla Port without payment of duty in September, 2000. During the investigation, it was found that the exporter M/s. Supreme Castings Limited had manipulated the export document to facilitate the extra benefit under the DEPB scheme and accordingly, the licence was cancelled by the DGFT authorities in November, 2004 whereafter a show cause notice came to be issued to the importer. The Tribunal took note of the fact that the adjudicating authority had not given any finding that the importer had not paid the duty by reason of any collusion or any wilful misstatement or suppression of facts. Before the Tribunal, strong reliance was placed on behalf of the Revenue on the above referred decision of the Calcutta High Court wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
