2015 (11) TMI 1024 - AT - Customs

Tribunal protects DEPB buyers, overturns duty demand.

M/s Ineos Abs India Ltd. And Others Versus Commissioner of Customs, Kandla

The Tribunal allowed the appeals filed by the appellants, setting aside the demand of duty, interest, and penalties. It emphasized protecting the rights ... Duty demand - Fraudulent DEPB Benefit availed by the seller of DEPB - Appellant which is a SEZ Unit, purchased DEPB scrips on payment of valuable consideration and it was valid document at time of import. - Invocation of extended period of limitation - Held that:- DEPB scrip/licence had been issued by the DGFT, against the export of goods, produced by the exporter. The appellants purchased DEPB scrips on payment of valuable consideration and it was valid document at time of import. There is neither any allegation nor evidence that the appellants were aware of the fraud committed by the exporter M/s. Trisuns. The goods were imported in the year 2000 and DEPB scrip was cancelled only on 28.01.2010. DEPB scrips issued by DGFT is itself genuine, at the time of import and valid till it is set-aside transaction on the basis said document was good and it is good title to holder for valuable consideration and the rights of such third party are required to be protected - demand of duty for the extended period of limitation cannot be sustained and therefore, the imposition of penalty would not be warranted - Decided in favour of assessee. Issues Involved:1. Validity of DEPB scrips at the time of importation.2. Allegations of fraudulent acquisition of DEPB scrips by M/s. Trisuns.3. Applicability of extended period of limitation under Section 28 of the Customs Act, 1962.4. Liability of importers who purchased DEPB scrips from the open market.Issue-wise Detailed Analysis:1. Validity of DEPB Scrips at the Time of Importation:The appellants argued that the DEPB scrips were valid at the time of importation, issuance of the Show Cause Notice, and the adjudication order. The DEPB licenses were canceled ab initio by the Development Commissioner, Kandla Special Economic Zone, only on 28.01.2010. Thus, at the time of importation in 2000 and during the adjudication process, the DEPB licenses were valid.2. Allegations of Fraudulent Acquisition of DEPB Scrips by M/s. Trisuns:The Directorate of Revenue Intelligence (DRI) alleged that M/s. Trisuns obtained DEPB scrips fraudulently by misdeclaring the origin of the goods as from the Domestic Tariff Area (DTA) instead of the Special Economic Zone (SEZ). The investigation revealed that M/s. Trisuns manipulated documents to claim DEPB credit, which was not available for SEZ units. The appellants, who purchased the DEPB scrips from the open market, were not found to be involved in the fraud committed by M/s. Trisuns.3. Applicability of Extended Period of Limitation under Section 28 of the Customs Act, 1962:The Adjudicating Authority invoked the extended period of limitation of five years under the proviso to Section 28 of the Customs Act, 1962, citing collusion or willful misstatement by the importer or exporter. The Tribunal, however, found that the appellants, as bona fide purchasers of the DEPB scrips, were not involved in any fraud or willful misstatement. The Tribunal referred to the Gujarat High Court's decision in the case of Prayagraj Dyeing and Printing Mills Pvt. Ltd., which stated that the extended period of limitation cannot be invoked in the absence of positive evasion of duty by the appellants.4. Liability of Importers Who Purchased DEPB Scrips from the Open Market:The Tribunal held that the DEPB scrips were valid and genuine at the time of importation and were purchased by the appellants for valuable consideration. The Tribunal referred to several case laws, including the Supreme Court's decision in the case of Sneha Sales Corporation, which held that a license obtained by fraud is voidable and remains valid until canceled. The Tribunal concluded that the appellants, as bona fide purchasers, could not be held liable for the fraud committed by M/s. Trisuns, and the extended period of limitation could not be applied to them.Conclusion:The Tribunal set aside the demand of duty along with interest and the imposition of penalties on the appellants as barred by limitation. The appeals filed by the appellants were allowed, and the Tribunal emphasized that the rights of bona fide purchasers of DEPB scrips must be protected. The Tribunal's decision was based on the principle that fraud vitiates everything, but in this case, the appellants were not parties to the fraud and had acted in good faith.