TaxTMI 
TaxTMI 
2016 (11) TMI 753
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....ssued to M/s. Sun Chemicals and Shri R.C. Jain among others demand of Rs. 6,49,929 was confirmed against M/s. Sun Chemicals. The goods imported by M/s. Sun Chemicals was confiscated and Rs. 3,92,000/- was imposed in lieu of confiscation. Penalty of Rs. 6,49,929/- was imposed under Section 112A of the Customs Act, 1962. Penalty of Rs. 3,14,000/- was imposed on Shri R.C. Jain under Section 112A of Customs Act. Penalty was also imposed on other people involved in the transaction. Appeals have been filed by M/s. Sun Chemicals and Shri R.C. Jain against the aforesaid order. 2. Ld. counsel for M/s. Sun Chemicals argued that they were not involved in any fraudulent activity and DEPB licence on the strength of which imports were made were valid ....
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....bay in CCE vs. Finesse Creation Inc. 2009 (248) ELT 122 which was upheld by apex court as reported in 2010 (255) ELT A120 (SC). 3. Ld. counsel for Shri R.C. Jain argued that they have not committed any fraud under the Customs Act if any forgery or fraud has been committed the same has been committed before DGFT and not before customs. In this regard, he relied on the decision of Hon'ble High Court of Gujarat in the case of CC vs. Shah Alloys Ltd. 2011 (269) ELT 323. He also relied on Hon'ble High Court of Gujarat in CC vs. Sanjay Agarwal 2011 (269) ELT 153 (Guj). 4. Ld. AR relies on the impugned order. He relied on the case of Dow Agrosciences India Pvt. Ltd. 2012 (283) ELT 524. Ld. AR distinguished the case of Sumit Wool Proc....
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....e case of J.M. Tex Pvt. Ltd. of the Bombay bench in order no. A/2156-2160/13/CSTB/C-I dated 17.10.2003 had confirmed the demand of duty. In the said case also DEPB scrips/ advanced licences were purchased from market were found to be obtained by submitting forged and fabricated document through DGFT. Ld. AR further relied on the decision of De-Nocil Corporation 2004 (171) ELT 209 wherein it had been held that DEPB is not a licence but merely a passbook showing credit of duty earned on export which can be utilised on export for paying duty on goods. On that ground it had differentiated the decision of the Hon'ble High Court of Bombay in the case of Taparia Overseas Pvt. Ltd. 2003 (161) ELT 47. Ld. counsel further argued that if someone h....
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....ssors (supra). On the other hand, revenue has relied on the decision of Dow Agrosciences (supra). We find that in the case of Sumit Wool Processors the facts were that DEPB scrips were obtained by overvaluation of export goods. In the instant case, DEPB scrips have been obtained by submitting forged shipping bills to DGFT. The Tribunal in the case of Sumit Wool Processors has considered the decision of Dow Agrosciences and differentiated primarily on the ground that in the case of Dow Agrosciences the DEPB scrips was obtained as a result of racket of forgery of export documents which is not so in the case of Sumit Wool Processors. In the instant case, we find that the DEPB scrips have been obtained by forging the shipping bill and BRC and t....
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....srepresenting before DGFT and by submitting forged BRCs. It is seen that Tribunal in the case of Eastern Silk Inds has relied heavily on the decision of the Kolkata High Court in ICI India Ltd. 2005 (184) ELT 339. The said case was approved by the Hon'ble apex court in 2005 (187) ELT A31(SC). 6.1. In view of the above facts, we find that the decision of the Tribunal in the case of Sumit Wool Processors cannot be applied as the facts in the instant case. However the decision of the Tribunal in the case of V.M. Tex P. Ltd, Dow Agrosciences and Apar Ltd. are in identical situation and therefore, relying on these decisions, the appeal of Sun Chemicals is dismissed. 7. The role of Shri R.C. Jain is limited to submitting forged BRC/ship....
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....r of the fake licence." 7.1. Similarly, in the case of Shah Alloys the Hon'ble High Court has observed as follows:- "6.1 In the facts of the present case, it is the case of appellant-revenue that the respondent has imported furnace Oil by making a wilful mis-statement before the Licensing Authority on the basis of a certificate issued by a Chartered Engineer which led to the issuance of EPCG licences for import of Furnace Oil as consumables in its favour. In this regard, it may be pertinent to refer to the definition of importer as defined under sub-section (26) of Section 2 of the Act, which provides that importer in relation to any goods at any time between their importation and the time when they are cleared for home cons....