2016 (9) TMI 722 - HC - Customs

Court rules in favor of assessee, absolves liability for innocent DEPB purchaser. Precedent cited.

The court allowed the appeals in favor of the assessee, emphasizing that liability should not be imposed on a bona fide purchaser of a Duty Entitlement ... Cancellation of DEPB issued - withdrawal of benefits availed on the basis of DEPB - demand of customs duty and SAD - confiscation under section 111 of the Customs Act, 1962 - option to pay redemption fine of ₹ 1,00,000/- under section 125 of the Customs Act, 1962 - principle of 'buyer be ware' - whether duty can be demanded from an importer who is not a party to fraud committed by an exporter ? - Held that: - similar issue decided in many cases one such being Commissioner of Customs, Amritsar v. Vallabh Design Products [2007 (4) TMI 274 - HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH], where it was held that the importer therein was not a party to the fraud and there was categoric finding that he had purchased DEPB from the open market in bonafide belief of its being genuine. There is a specific finding recorded by the first appellate authority and even by the Tribunal that the appellant was not party to the fraud with the seller of DEPB. DEPB was found to be a genuine document, though obtained by seller by producing some forged documents, to which the appellant was not a party - duty not demanded from the buyer - appeal allowed - decided in favor of appellant. Issues Involved:1. Whether duty can be demanded from an importer who is not a party to fraud committed by an exporter.2. Whether demand against the appellant is sustainable when demand against identically situated persons has already been dropped.3. Whether the extended period of limitation can be invoked.4. Whether the impugned order is perverse and contrary to record.Issue-wise Detailed Analysis:1. Duty Demand from Non-Party to Fraud:The appellant purchased a DEPB scrip from M/s Beni Exports, Jalandhar, and used it to discharge duty liability on imported goods. The DEPB was later found to be obtained using forged documents, leading to its cancellation and a subsequent show cause notice to the appellant for recovery of duty benefits availed. The appellant contended that since the DEPB was valid at the time of purchase and use, they should not be liable for the fraud committed by the exporter. The first appellate authority and the Tribunal found no evidence of the appellant's involvement in the fraud, and the penalty was set aside on these grounds. The court relied on precedent cases such as *Commissioner of Customs (Imports), Bombay v. Hico Enterprises* and *Commissioner of Customs, Amritsar v. Vallabh Design Products*, which held that action should be taken against the person who committed the fraud, not the bona fide purchaser of the DEPB.2. Sustainability of Demand Against Identically Situated Persons:The appellant argued that the demand was unsustainable as similar demands against other identically situated persons had been dropped. The court noted that in previous cases like *Vallabh Design Products* and *Leader Valves Ltd.*, the importers were not parties to the fraud and had purchased DEPBs in good faith. The court distinguished these cases from *Munjal Showa Limited*, where the DEPBs were themselves forged, and the importer did not act in good faith. The court found that the appellant acted bona fide and was not part of the fraud.3. Extended Period of Limitation:The issue of whether the extended period of limitation could be invoked was not specifically addressed in the judgment as the primary question regarding the appellant's liability was resolved in their favor. The court's decision to allow the appeal and answer the first substantial question in favor of the assessee rendered the other questions moot.4. Impugned Order Being Perverse and Contrary to Record:The appellant contended that the impugned order was perverse and contrary to the record, given the findings that they had not abetted or connived with the exporter. The court noted that both the first appellate authority and the Tribunal had recorded findings that the appellant was not involved in the fraud and had purchased the DEPB in a bona fide manner. The court concluded that the impugned order was indeed contrary to the record and upheld the appellant's contention.Conclusion:The court allowed the appeals, answering the first substantial question in favor of the assessee and against the revenue. Consequently, there was no need to address the other questions. The judgment emphasized the principle that liability should not be imposed on a bona fide purchaser of a DEPB who was not involved in the fraud committed by the exporter.