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TMI Blog2008 (9) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, which is clearly attracted to the present case. No substantial questions of law arises For the purpose of duty, the Tribunal has clearly held that the documents being forged, the appellant could not be allowed to take advantage of exemption. The Tribunal noticed that the firm with whom the appellant entered into the transaction was not traceable. The appellant itself had come to the conclusion that the documents were forged. In these circumstances, if further opportunity has been given to the appellant on its own asking and for its own benefit, we do not find any error in the course adopted by the Tribunal so as to give rise to substantial question of law sought to be raised. Whether interest under Section 28AB of the act is leviable in absence of determination of short levy under Section 28 of the Act does not, thus, arise on facts as the short levy has clearly been determined. Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods were cleared in May/June 2003 and vide letter dated 5-8-2003, the Assistant Commissioner, ICD, Faridabad informed the appellant that TRAs issued against the DEPB scrips were forged and that the DEPB were also forged. The appellant was required to deposit the duty with interest in lieu of DHPB benefit availed by it. The operative part of the notice is as under :- "In this connection, investigation made by SIIB, Jawahar Nehru Customs House, district Raigarh, Maharashtra have confirmed the RAs issued against the above DEPB scrips are forged. It has also been confirmed that DEPB scrips are also forged. In view of the above you are requested to deposit an amount of Rs. 1,29,43,927/- as duty plus interest in lieu of DEPB benefit availed by you against the above DEPB and RAs immediately, failing which action as deemed fit under the Customs Act will be taken to recover the said amount." 3. The appellant vide letter dated 7-8-2003 wrote back, inter alia, to the effect that it was surprised to learn about the forgery and was taking steps to lodge FIR against the transferor and sought time to make payment. This letter was followed by deposit of the amount of duty on 12-8-2003 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand of duty on the point of limitation. The Tribunal rejected the plea of the appellant on the issue of liability of duty but remanded the matter to the original authority on the issue of penalty. Redemption fine was set aside. Relevant observations are as under :- "We have carefully considered the submissions from both sides. We take note of the fact that immediately on communication of the results of verification by the Custom authorities, the appellant company paid on 12th August, 2003 the entire duty involved. The appellants claimed that they have purchased the scrip's through the broker Shri Bishnoi which has been denied by the said agent. We find that the appellants have entered into transactions for purchase of the DEPB scrip's with M/s. ACME and Ankur Impex, Mumbai both of whom are reportedly not traceable. They have made payments to these firms by cheques. It is their contention that Mr. Bishnoi also acted as an agent of M/s. ACME and Ankur Impex, Mumbai. It was claimed that after commencement of the investigation, the representatives of the appellant company approached Mr. Bishnoi to inform them about the nature of DEPB i.e. whether they were genuine or otherwise, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 1962 SC 1893. He submitted that the said view was followed by the Hon'ble Supreme Court in Collector of Customs, Bombay v. Sneha Sales Corporation, 2000 (121) E.L.T. 577 (S.C.) and Sumpat Raj Dugar, 1992 (58) E.L.T. 163 (S.C.), by the Bombay High Court in Taparia Overseas (P) Limited v. UOI, 2003 (161) E.L.T. 47 and K. Uttamlal (Exports) Pvt. Limited v. UOI, 1990 (46) E.L.T. 527 and by the Allahabad High Court in Coolade Beverages Limited v. Commissioner of Central Excise, Meerut, 2004 (172) E.L.T. 451 and H. Guru Instrument (North India) Pvt. Limited v. CEGAT, New Delhi, 1998 (104) E.L.T. 8. The submission is that even if a licence is void on account of fraud, this did not affect the rights of transferee unless the transferee had not acted bona fide. He also relied on judgment of the Hon'ble Supreme Court in Aban Lloyd Chiles Offshore Ltd. and others v. Commissioner of Customs, Maharashtra, (2006) 6 SCC 482 and judgments of this Court in Commissioner of Customs, Amritsar v. Vallabh Design Products, (2007) 219 E.L.T. 73 and Commissioner of Customs v. Leader Valves Ltd., 2007 (218) E.L.T. 349. 10. We are unable to accept the submission. The judgments relied upon are clearly disti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the petitions are bereft of any merit. The entire claim of the petitioners was based on falsehood. It is not in dispute that furnishing of bank certificate of exports and realisation of export proceeds was a pre-requisite for issue of DEPB. Admittedly, the bank certificates furnished were fabricated documents. The observations of the former Lord Chief Justice of England, Sir Edward Coke, more than three centuries ago, that "fraud avoids all judicial acts, ecclesiastical or temporal", noticed by the Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994 S.C. 853, are apt for the instant case. The Apex Court has also observed that an act of deliberate deception with the design of securing something by taking unfair advantage of another is a "fraud". "Fraud" is a cheating intended to get an advantage. A person whose case is based on falsehood has no right to seek relief in equity. Recently in Commissioner of Customs v. Essar Oil Ltd., (2004) 11 SCC 364, their Lordships of the Supreme Court have observed that it is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under protest and has never denied that the documents were forged. Having come to know that the documents were forged and having been confronted with that fact, the appellant was under an obligation to disclose the true facts and by not doing so, the appellant was guilty of willful suppression of facts within the meaning of proviso to Section 28 and thus, extended period of limitation could certainly be availed in the present case. 19. It is settled principle of common law that a purchaser steps into the shoes of the seller and does not acquire better title than the seller. This principle has also been recognized under Section 27 of the Sales of Goods Act, 1932. 20. The charge of duty is on the goods under Section 12 of the Act unless a case of exemption is made out, irrespective of intention of any person. 21. Even though the word 'fraud' and "with intent to evade payment of duty" are absent in Section 28(1) of the Act, willful suppression or misstatement do find mention in proviso to Section 28 of the Act, which is clearly attracted to the present case. 22. for the above reasons, we are of the view that proposed questions of law (a) and (b) are not substantial questions of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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