TaxTMI 
TaxTMI 
TaxTMI 
2015 (5) TMI 52
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppellant-firm (hereinafter referred to as 'Exporters') had made export of certain goods declaring the same as automobile parts such as door bidding, fuel pump fitting, front suspension bush, oil seal etc. and availed export benefit by way of Duty Entitlement Pass Book ( DEPB ) Scheme. It is further the case of the Revenue that the Exporters-appellants against the DEPB credit obtained DEPB Script from the Director General of Foreign Trade which were sold in open market. As per the said Scheme, the bearer of DEPB Script is entitled to import the goods without payment of duty. The Customs Authorities started investigation in respect of exports made by Delhi based firms namely M/s S.S. Enterprises, M/s Neel Impex and M/s Agarwal Traders and found that the exported goods were overvalued to get undue DEPB benefit. (b) Since the Revenue found that the said applicants-firms were also exporting similar goods, investigation started and it was found that there are many transactions between the present appellants and M/s S.S. Enterprises, M/s Neel Impex and M/s Agarwal Traders. The appellants denied their relationship with the aforesaid three firms. However, since the Revenue had a ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s and heard the appeals on merits without insisting on any pre-deposit. The learned Senior Counsel submits that the procedure as adopted by the Original Authority is dehorse the provisions of statute. He submits that the Customs Authorities did not have jurisdiction under Section 28 of the Customs Act. The learned Senior Counsel submits that the Authorities are seeking to recover the duty payable by the importers from the appellants which is not permissible in law. The learned Senior Counsel submits that the Division Bench of this Court in the case of Commissioner of Customs (EP) Vs. Jupiter Exports [2007 (213) 614 ( Bom .) has held that in view of the provisions of Section 28 it is not permissible to recover the duty from an Exporter. The learned Senior Counsel states that as a matter of fact in the said case the Importer was identified, however, it was held by the Commissioner of Customs in the order that the importer who had imported the goods bonafide was not liable for payment of duty. It is further submitted that in the present case, even the Authorities have not identified the importer. It is, therefore, submitted that in the facts of the present case, the duty which is basi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l these factors while passing the impugned order. He submits that taking into consideration all the factors, the learned Tribunal has directed to deposit only 50% of the duty and only 10% of the penalties as pre-deposit. The learned Counsel therefore submits that the present appeals are without merits and as such are liable to be dismissed. 6 The question of law as raised in the grounds (a) to (g) and (i), all relate to the merits of the main matter. We find that the said questions of law can be considered only after final adjudication by the learned Tribunal . We find that only following question of law arises for our determination: "(h) Whether the Tribunal ought to have waived the predeposit of duty and penalty under Section 129E of the Act as calling upon the Appellant to deposit the same or part of the same would cause undue hardship to the Appellant in view of financial difficulty of the Appellant ? " 7 Admit on the aforesaid substantial question of law. We proceed to hear and decide the same finally by consent of the parties. 8 All these appeals arise out of the order passed by the learned CESTAT dated 4th December 2013 thereby partly allowing the applications filed by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e authorities were considering the cases of similar units namely M/s S.S. Enterprises, M/s Neel Impex and M/s Agarwal Traders, it was found that the exported goods were overvalued to get undue DEPB benefit. It was further found that the appellants-firms were having transactions with the aforesaid three firms. Though the appellants had specifically denied the relationship with the said three firms, it was found from the material on record that there were various bank transactions between the appellants and/or their subsidiaries and the said three firms. From the samples taken from the consignments of the said three firms and the market enquiry, it was found that the Exporter had declared inflated value of motor parts and availed undue DEPB credit and on the said basis DEPB Scripts were obtained and were sold in the open market. 11 Insofar as the contention of Shri Bharucha that the procedure adopted by the Original Authority being in violation of the Circular dated 8th December 1997 issued by the Government of India is concerned, at least prima facie, we are of the view that the said contention is not supported by material on record. The material placed on record would reveal that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Circular dated 8th December 1997 issued by the Government of India is concerned, at least prima facie, we do not find that the said Circular, can restrict the power of the Authority to invoke the provisions under Section 28 of the Customs Act within a period of five years. Undoubtedly, a show cause notice is issued to the Appellant before the impugned order has been passed by the Original Authority . 16 Insofar as the judgment of the Division Bench of this Court in the case of Commissioner of Customs (EP) Vs. Jupiter Exports (supra), is concerned, it is relevant to refer to paragraph-23 of the said judgment in which the Division Bench has held that the duty under Section 28 could only be recovered from "a person chargeable to duty" and that such a person would be the importer in the case of import and the exporter in the case of exports. The Division Bench held that the import duty cannot be recovered from the person who has not caused the import of the goods and who does not hold himself to be the importer or the owner of the imported goods. It was therefore held that the assessee therein were not the importers and therefore cannot be made chargeable to the duty as the demand ....