TaxTMI 
TaxTMI 
2015 (9) TMI 1316
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....emicals through Kandla Port on the basis of the said DEPB scrips, without payment of duty. In 2004, it was found that the exporter obtained the transferable DEPB scrips fraudulently by ante-dating the shipping Bill No. 2216 dated 30.03.2000, pertaining to cargo against shipping bill, which was received in CFS on 04.04.2000, when the value applicable cab to grant of DEPB for export was reduced. The said DEPB scrip was cancelled by DGFT authority. 4. A Show Cause Notice dt.18.04.2005 was issued by the Commissioner of Customs, Kandla to proposing demand of Customs duty of Rs. 12,35,362.00 alongwith interest and to impose penalty under the Customs Act, 1962 on the importer. It has also proposed to confiscate the goods under Section 125 of the said Act. It has further proposed to impose penalties on the other Appellants. By the impugned Adjudication order, the Commissioner of Customs, Kandla confirmed the demand of duty of Rs. 12,35,362.00 alongwith interest and imposed penalty of equal amount of duty on the importer. It has imposed penalty of Rs. 12,35,362.00 and Rs. 5,00,000.00 on the exporter (M/s. Supreme Casting Limited) and its Director Shri Gurkirpal Singh respectively, and pe....
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....position of penalty on Shri D.R. Ahuja, he submits that the Appellant countersigned the documents without any verification and the penalty under Section 112(a) of the said Act is rightly imposed. He further submits that the penalty imposed on the exporter and its Director are justified. It is established from the records that the exporter and its Director had deliberately manipulated the date of export to avail extra benefit under DEPB scrips. It is also submitted that the CHA has not taken the reasonably steps and the penalty is rightly imposed. 8. After hearing both the sides and on perusal of the records, we find that there is no dispute on the fact that the Importer purchased the DEPB scrips from the open market on 25.08.2000. The Importer imported the Chemicals from Kandla Port without payment of duty in September 2000. It is contended by the Importer before the Adjudicating authority that they purchased the DEPB scrips from the exporter through M/s. Saab Impex, Ludhiana and issued cheque No. 377199 dated 01.9.2000 in favour of M/s. Saab Impex. The importer utilized DEPB scrips to discharge duty liability on goods imported by them at Kandla Port against the Release Advice i....
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....the identical situation, dismissed the appeal filed by the Revenue. It has been observed that there is neither any allegation nor any evidence to show that the Appellant had knowledge about the fraudulent mis-representation of the exporter in obtaining DEPB scrips and duty cannot be recovered from transferee. The Hon'ble Punjab & Haryana High Court in the case of Commissioner of Customs Vs M/s Leader Valves Ltd - 2007 (218) ELT 349 (P&H) also dismissed the appeal filed by the Revenue. It has been held that the Assessee was not a party to fraud and had purchased DEPB from open market in the bonafide belief of its being genuine. The assessee had paid full price and availed the benefit and merely because at a later stage, DEPB found to be fabricated and taken on the basis of BCER, the assessee could not be deprived of benefit which are legitimately available to them. The decision of Hon'ble Punjab & Haryana High Court was upheld by the Hon'ble Supreme Court as reported in 2008 (227) ELT A 29 (S.C.) 11. The Revenue strongly relied upon the decision of Hon'ble Calcutta High Court in the case of ICI Limited (Supra). In that case, it has been held that the credit available on the stren....
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....ull and void, and as such, has no application to this type of cases. Similarly, reliance over the judgment of the Supreme Court in the case of Commissioner of Customs (Preventive) v. Aafloat Textiles (I) P. Ltd. reported in 2009 (235) E.L.T. 587, cannot be supported as Afloat case is one pertaining to a forged document but not in respect to a document otherwise genuine, issued by practising fraud. The facts stated in the case of Afloat indicated that the same was a case of a forged invoice and thus, the principles laid down therein cannot have any application to an invoice which is, otherwise, genuinely issued by a manufacturer registered with the Revenue. Justice Arijit Pasayat who delivered the judgment of the Supreme Court in the case of Afloat (supra), in a subsequent case of Commissioner of Customs v. Ajay Kumar & Company, reported in 2009 (238) E.L.T. 387, clearly indicated that the same being not a case of forged document but one of issue of license by practising fraud, the Tribunal was right in holding that the transferee of the license should not be made liable. It may not be out of place to mention here that the Tribunal, in its judgment, reported in 2006 (205) E.L.T. 747....
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....nte-dating of the examination report or out of charge report in respect of S/Bill No. 2277 dated 31-3-2000. The finding of the Commissioner is without any material. It was pointed out by the appellant No. l that he has no intention to give any undue benefit to the exporter. Hence, it may be a case of negligence of duty. The Division Bench of the Tribunal in the case of A.P. Sales v. CC, Hyderabad (supra) held that Superintendent and Inspector of Customs and Central Excise charged to have involved themselves in fraudulent export and there is no proof of extraneous consideration for their action and for imposition of penalty under Section 114 ibid is set aside. It has been held that the case may be dereliction of duty on the part of the Superintendent of customs, on which penalty cannot be imposed under Section 114 of the Act. In the case of P.N. Ram v. CCE, Kanpur (supra), the Division Bench of the Tribunal held that penalty under Section 114 of the Act is not leviable on Customs Officer for negligence and dereliction of duty without any consideration. In the present case, there is no evidence that the appellants had connived or colluded with the exporter and, therefore, imposition ....