TaxTMI 
TaxTMI 
2007 (6) TMI 2
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....products 3. The Commissioner of Customs (E.P.) issued a show cause notice alleging gross misuse of DEEC scheme adopting fraudulent means to obtain higher - entitlement of duty free imports of (Polyester Filament Yarn (P.F.Y.) and other raw materials under the DEEC scheme. It was alleged that after expo 38,646.412 kgs of fabrics (containing 31,518 kgs of P.F.Y.) M/s. Jupiter Exports had altered the export permission (E.P. copies) of the shipping bills and enhanced quantity of exported goods (66,996.890 kgs) and consequently showed use of excess quantity of P.F.Y. in exported fabrics (60.295 kgs). 4. The E.P. copy was submitted to D.G.F.T. in order to obtain duty free Advance Licences for the import of P.F.Y. and disperse chemicals. The net excess weight of P.F.Y. shown was 45,221.155 kgs. It was alleged that on the basis of forged and fabricated documents M/s. Jupiter Exports (Petitioner) obtained a higher entitlement of duty free import licence of P.F.Y. and other permissible raw materials under the DEEC scheme. Since the Advance Licence was fraudulently obtained all the imports were sought to be treated as without an Advance Licence. M/s. Jupiter Exports (the petitioner) was the....
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....he goods but to any owner of the person holding himself out to be the importer at any time between their importation in the clearance for home consumption. As the bulk of the imports were made by the bona fide transferees of the licenses obtained and sold by the petitioner, it could not be considered to be the importers as such no duty can be recovered from the original holder of the import licence. It was thus held that petitioner was liable to pay duty only to the extent of goods actually imported by it, quantified in the sum of Rs. 1.38 lakhs approximately, i.e. for the goods actually imported by it. 10. The Customs Department not satisfied with the aforesaid order of the Tribunal invoked jurisdiction of this Court under Section 130(A) of the Customs Act to seek reference for opinion of this Court on following questions of Law : (a) Whether exports made by manipulating and forging the documents and creating false records and exporting items other than that declared in the shipping bill are liable for confiscation? (b) Whether the licence obtained by manipulation and forging the documents for creating false record so that the requirement of the DEEC scheme is fulfilled, is val....
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..../92- Cus. dated 19th May, 1992, on which reliance was placed by the Commissioner of Customs; to hold that the original licence holder, namely, M/s. Jupiter Exports could be treated as "deemed importer" in terms of the said notification. We have perused each and every line of the Notification. It does not contain any such provision. We did not find any whisper in it in this behalf. Mr. Rao appearing for Revenue was specifically asked to put his finger on a line or a word of the notification in support of the findings recorded by the Commissioner of Customs. However, he found it difficult. Mr. Rao fairly conceded that the notification does not spelt out such a concept of "deemed importer". 15. Mr. Shroff without prejudice to his aforesaid contentions, alternatively urged that assuming while denying that duty in law be recovered from the original licence holder. There is no dispute that the actual export of PFY was 31,518 kgs contained in 36,646.412 kgs of fabrics. As per the Standard Input- Output Norms (SION) for every 1 kg of PFY the exporter can import 1.1 kgs of input. As against the entitlement of 34,669.800 kgs of PFY the total quantity imported was only 11,243.280 kgs. Hence ....
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....ing implementation of the order of the Tribunal is liable to be allowed, in the event, application filed by the Revenue is dismissed. Consideration : 19. Having heard the rival parties, no fault can be found with the view taken by the Tribunal. It is now well settled that when partnership is penalised, separate penalties cannot be imposed on the partners. 20. So far as first question is concerned it does not arise since the Commissioner itself did not confiscate any goods that were exported. 21. With regard to the second question, this question also does not arise for determination of this Court as the Commissioner has held that to the extent of actual exports, the respondents must be given the benefit of the license; so far transferees are concerned, their import cannot be touched or considered in this application, since order exonerating them is accepted by the Revenue. 22. With regard to the issue as to whether a license issued by the D.G.F.T. is valid or not is an issue that has to be determined by the D.G.F.T. and not the Customs Authorities. It is now well settled that until the licenses are cancelled by the licensing authority they are deemed to be valid. The Hon'ble Su....