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TMI Blog2003 (11) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 28 speaks of non-levy/short-levy by reason of collusion, mis-statement, suppression etc. It is immaterial before which authority mis-statement/suppression was made. Since that has led to non-levy/short-levy, application of extended period under Section 28 cannot be ruled out. In any case, the legal maxim Lex non cogit ad imposibilia merely means that the law does not compel the doing of impossibilities . It is no one's case that the Quantity Based Advance Licence Scheme operating under Notification No. 204/92 is either a compulsory scheme or that it compels anyone to do the impossible. The scheme is designed to make available duty free inputs for the export product. The condition ensures that a person who has already taken credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents, particularly the submissions of the transferee that he had no role in the suppression and mis-statement, may be kept in view. Department's appeal is allowed in the above terms. - S/Shri Krishna Kumar, Member (J) and C. Satapathy, Member (T) [Order per : C. Satapathy, Member (T)]. - Heard both sides. Shri Sanjay Singhal, learned JDR appearing for the department states that the impugned order has been passed by the Commissioner allowing duty exemption under Notification No. 204/92-Cus., dated 19-5-1992 and without imposing any penalty even though it is a clear case where the input duty credit has been taken by the exporter, and hence there is a clear violation of the conditions of the said notification. He also cites t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (S.C.) and relying on the decision of the Hon'ble Orissa High Court decision in the case of Raj Exporters v. National Aluminium Co. Ltd. - 1996 (87) E.L.T. 349, has come to a conclusion that duty exemption cannot be allowed in such a case vide CC, Mumbai v. Bharat Pulverising Mills Ltd. (supra). In the present case, the duty free import by the 1st respondents against transferred licences had taken place earlier on 25-10-1994. Subsequently, the duty credit taken was reversed by the 2nd respondent on 10-3-1995 but a refund against the same has been taken on 15-2-1996. As such, the Department's case is on a better footing in this case than in the case of Bharat Pulverising Mills (supra), since in view of the refund taken, the credit is as good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No. 204/92. Once the conditions laid down under an exemption notification issued in public interest is not fulfilled, the imported goods cannot be allowed duty exemption. Secondly, if the licence holder himself was not eligible for duty exemption under a licence, the transferee cannot avail of the duty exemption under such a licence. In any case, the legal maxim "Lex non cogit ad imposibilia" merely means that "the law does not compel the doing of impossibilities" (Black's Law Dictionary, 6th Edition). It is no one's case that the Quantity Based Advance Licence Scheme operating under Notification No. 204/92 is either a compulsory scheme or that it compels anyone to do the impossible. First of all, the scheme is optional and anyo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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