TaxTMI 
TaxTMI 
2011 (2) TMI 382
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....d have ignored the binding judgments of the Full/Larger Bench of the Tribunal? C. Whether the 2nd Respondent ought to have followed the law as laid down by the Hon'ble Supreme Court and the various High Courts in the various cases having identical issues involved, as cited therein? D. Whether a License obtained on the basis of fabricated documents was merely voidable and was good till avoided as held in the case of East India Commercial Co. Ltd. v. Collector of Customs [AIR 1962 SC 1893 = 1983 (13) E.L.T. 1342 (S.C.)]? E. Whether the import of goods under the License or the availment of credit under the DEPB Scrip by the Transferee of the License/DEPB Scrip prior to cancellation of such License/DEPB Scrip by the appropriate authority, could be held to be illegal or improper? F. Whether the provisions of proviso (2) sub-section (1) of Section 28 of the Customs Act, 1962, could at all be invoked when there was no collusion or willful misstatement or suppression of facts by the importer and consequently whether the demand for duty could be made against such imp....
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....he case of the assessee itself in respect of different DEPB Scrips in Friends Trading Co. and Another v. Union of India - 2010 (254) E.L.T. 652, which in turn refers to earlier judgment of this Court dated 1-9-2007 in CUSAP No. 27 of 2008 M/s. Munjal Showa Limited v. Commissioner of Customs and Central Excise (Delhi (IV), Faridabad [2009 (246) E.L.T. 18 (P & H)] 3. We have heard learned counsel for the appellant. 4. With reference to proposed questions of law A to E, it was submitted that benefit taken on the basis of fabricated document, which is cancelled subsequently, could not be withdrawn since benefit was taken prior to the date of such cancellation. For this proposition, reliance has been placed on following judgments of the Hon'ble Supreme Court :- (i) East India Commercial Company Limited v. Collector, 1983 (13) E.L.T. 1342 (S.C.) = AIR 1962 SC 1893; (ii) Collector of Customs, Bombay v. Sneha Sales Corporation, 2000 (121) E.L.T. 577 (S.C.), and (iii) Sampat Raj Dugar, 1992 (58) E.L.T. 163 (S.C.). 5. With reference to proposed questions F to I, it was submitted that proviso to Secti....
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.... Sampat Raj Dugar (supra) also the situation was identical as in East India Commercial Company (supra). xx xx xx xx xx 16. On the other hand, a Division Bench of this Court in Golden Tools International v. Joint DGFT, Ludhiana, 2006 (199) E.L.T. 213 after referring to the judgments of the Hon'ble Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853 and Commissioner of Customs v. Essar Oil Ltd., (2004) 11 SCC 364 observed :- "12. We are of the view that both the petitions are bereft of any merit. The entire cl....
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....v. Skipper Construction Company (P) Limited, AIR 1996 SC 2005, the Hon'ble Supreme Court considered the concept of resulting trust and equity. It was held that where a person earned properties by smuggling or other illegal activities, all such properties whether standing in his name or in the name of his relations or associates will be forfeited to the State. Though, the question herein is not of forfeiture of property illegally acquired but on parity, a person committing fraud is required to restore the benefits taken and cannot be heard to say that since the benefit was transferred to an innocent person and since an innocent person cannot be punished, such a person should also be exonerated." 18. ......Even as per scheme of exemption, exemption was subject to export proceedings being realised within six months, which in the present case, were never realised................" 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....
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....the Hon'ble Tribunal in the case of ICI India Ltd. v. Commissioner of Customs, Calcutta cited as 2003 (151) E.L.T. 336 (Tri. - Del.). After considering the facts of that case and the case law on the subject, the Hon'ble Tribunal observed that "Fake document is ab-initio unlawful and void such document cannot give rise to any right or benefit in law". It was also held that "No benefit could accrue to their holder and no credit of duty could be taken on them-Denial of benefit of Notification No. 34/97-CUS. upheld". The Tribunal disposed off the appeal by affirming the confiscation of duty demand along with the interest under Section 28AA of the Act and affirmed the order of confiscation of goods under Section 111(o) observing that since the DEPB licence was null and void ab-initio, no credit of duty was available to the appellants against those scrips and the paramount condition under the Notification was not fulfilled by the importer and held the appellants liable to pay duty. M/s. Friends Trading Co. have also raised the issue of limitation, I find that in the present case, the DEPB Scrip that was used by them towards debit of duty has been cancelled ab-initio by Jt. DGFT, Ludhi....