2007 (12) TMI 52

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....nd that M/s. Alfa International has obtained DEPB scrips by making fraudulent representation/mis-statement /substitution of shipping bills in order to avail higher DEPB benefit. The DEPB scrips, so obtained, were transferred/sold to various importers to utilize the same for paying the customs duty against their imports and to avail exemption from Special Additional Duty of Customs. Show cause notice was issued on this basis to M/s. Aifa International proposing imposition of penalty. Show cause notice was also issued to the appellant herein, M/s. Flexo Polymers (P) Ltd., for recovery of duty of Rs. 4,51,830/- and for confiscation as well as for imposition of penalty. Notices were also issued to others proposing imposition of penalty. The adj....

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....ged documents. Both the authorities below have held that, since DEPB Scrips were obtained by fraud, they were void ab initio and no benefit, therefore, could have been availed of by M/s. Flexo Polymers (P) Ltd. For this purpose, the authorities below ha relied upon the decision of the Hon'ble Calcutta High Court in the case of M/s. ICI India Ltd. v. Commissioner of Customs (Port), Calcutta, 2005 (184) E.L.T. 339 (Cal.), holding that, credit is available on the strength of a valid DEPB only, and if the same is forged, it is non est and, therefore, there is no valid DEPB and no credit of duty can be derived thereunder. This judgment has been upheld by the Apex Court as re ported in 2005 (187) E.L.T A31 (S.C.). On the other hand, the learned c....

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....at in the case of M/s. ICI India Ltd. v. Commissioner of Customs (Port), Calcutta (supra), relied upon by the Revenue, the Hon'ble Calcutta High Court has distinguished the judgment of the Hon'ble Apex Court in the case of United India Insurance Company on the ground that in United India Insurance Company's case the insurance policy was not found to be forged, but was obtained on the basis of the forgery relating to the driving licence driver engaged by the insured. The Hon'ble Calcutta High Court has held that the question would be different if the document itself on the strength whereof credit is claimed is forged. If the DEPB is forged, then the same has been held to be non est and, therefore, there is no valid DEPB. I find that in the p....