AI Drafter 
TaxTMI 
TaxTMI 
2007 (3) TMI 166
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....der. The revenue has assailed the order passed by the Tribunal on the principal ground that once the Joint Director (General) of Foreign Trade had cancelled the Duty Exemption Pass Book which is commonly known as DEPB Scheme issued to M/s. Parker Industries, 184, Dilbagh Nagar, Jalandhar which order was upheld in appeal by the Additional Director General of Foreign Trade then the assessee-respondent who had purchased the DPEB from M/s. Parker Industries were not entitled to avail any benefit. For the sake of convenience, the facts are being referred from CUSAP No. 15 of 2006. 2. The Government of India in order to boost export had announced various concessions including exemption from payment of Central Excise duty, Customs duty and form....
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.... enable him to import inputs required for export production duty-free. He can also make use of this credit to import freely importable goods and or such credit can be transferred. The DEPB scrip is transferable scrip and it is regularly traded in the market. (d) That the main features of the DEPB scheme as operated under the Export Import Policy are the following :- (i) Duty exemption under the scheme is available against export of goods. (ii) The exemption is to be availed by debiting credits, which is to be earned at the specific rate notified by DGFT for the relevant product which is exported. (iii) The DEPB credit is subject to realisation of export proceeds. If the export proceeds are not realised within six months or....
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....sp; Commissioner Customs, Amritsar passed the order-in-original on 23-7-2004 ( Annexure A/1) holding as under: "However, I find nothing on record to infer that M/s Leader Valves Ltd., S. 3 & 4 Industrial Area, Jalandhar had purchased the freely transferable DEPB scrip otherwise than in a bona fide manner and utilised the same towards debit/exemption of duty and there is nothing to suggest of his having colluded with the exporter who obtained the DEPB scrips by fraudulent manner. Therefore, I do not hold them liable to penal action under Section 112 of the Customs Act, 1962. In view of the above, I pass the following orders :- Order 1. I hold the goods valued at Rs. 3,28,171/- imported vide Bill of Entry No. 109,....
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....ble to penal action under Section 112 of the Customs Act, 1962. The Tribunal placed reliance on the categorical finding of the Commissioner further to conclude that once the penal action under Section 112 of the Customs Act could not be initiated against the assessee-respondent, no duty was recoverable from them under Section 28 of the Customs Act. The Tribunal drew support from a judgment of the Bombay High Court in the case of Taparia Overseas (P) Ltd v. Union of India - 2003 (161) E.L.T. 47. The operative part of the order of the Tribunal reads as under : "In the face of these findings ld. Commissioner could not legally order the recovery of the duty under Section 28 of the Customs Act. In this context, the law laid down by the ....
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....r relied upon a Division Bench judgment of this Court rendered in the case of M/s. Golden Tools International v. Joint Director General of Foreign Trade, Ludhiana - 2006 (199) E.L.T. 213 (P&H). (CWP No. 15278 of 2004, decided on 22-11-2005). Learned Counsel has also cited a judgment of Hon'ble the Supreme Court in the case of New India Assurance Co. v. Kamla and others, AIR 2001 SC 419 and argued that once a driving licence has been found to be forged then its mere renewal by a statutory authority does not get it legally sanctified. He has submitted that a fabricated and forged document would continue to be the same and any benefit obtained on that basis must be considered illegal and unlawful. Learned Counsel also placed reliance on a Divi....
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.... In support of their submission, learned Counsel placed reliance on various judgments including the judgment of Hon'ble the Supreme Court in the case of Aban Loyd Chiles Offshore Ltd. v. Commissioner of Customs - 2006 (200) E.L.T. 370; East India Commercial v. Collector of Customs - 1983 (13) E.L.T. 1342 (S.C.) = AIR 1962 SC 1893; Collector of Customs, Bombay v. Sneha Sales Corporation, 2000 (121) E.L.T. 577 (S.C.) and Birla Corporation Ltd. v. Commissioner of Central Excise, 2005 (186) E.L.T. 266 (S.C.). 9. After hearing learned Counsel for the parties, we are of the considered view that this appeal is devoid of any merit. The assessee-respondent admittedly is not a party to the fraud. There are categorical finding that they....