2017 (11) TMI 1120
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....f the search and it is also a matter of record that Veterinary Doctors available in the Country were not sufficient to carry on said ante mortem and post mortem investigation. Ld. DR submits that it is not only the blank signed certificates of the Doctors which was found in the factory but the same were filled with complete details alongwith the stamps, which were found in the factory. Thus appellants were not fulfilling the said condition of ITC Policy. So, the duty demand was raised, and penalty was imposed on the other concerned appellants. Being aggrieved, the appellants have filed the present appeals. 3. With this background, we heard Sh. V. Lakshmikumaran, ld. Advocate for the appellant and Sh. Govind Dixit, ld. AR for the Revenue. 4. Sh. Lakshmikumaran, Ld. Counsel submits that the appellants were engaged in the export of chilled meat. It is the submission of the ld. Counsel that Section 28AAA came into effect w.e.f. 28.05.2012 so the same is not applicable in the instant case. For this purpose, he relied on Explanation 2 of Section 28AAA where it was mentioned that - "The provisions of this sub-section shall apply to any utilisation of instrument `so obtained by the pers....
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.... the goods and who does not hold himself out to be the importer or the owner of the imported goods. As the respondents are not the importer. It cannot be made chargeable to duty as the demand for duty has to be based on law and not on equity or moral considerations. The Tribunal rightly held that it was open to the department to proceed against a person who had obtained a license by fraud or mis-declaration in accordance with law". 7. Further, he relied on the decision of the Tribunal in the case of Swati Industries Vs. CC, Amritsar - 2009 (248) ELT 191 (Tri. Del.) where it was observed that- "3.1.1 ........If the allegation of export over-invoicing is upheld and the DGFT, the authority to issue, cancel or modify the DEPB scrips, cancels the scrips or reduces their value, the duty can be recovered only from the users of the DEPB scrips for duty free imports, not from the exporter against whose exports the DEPB scrips had been issued. There is no provision in the Customs Act, 1962 to recover the wrongly taken DEPB benefit in cash from the exporters, if he has sold/ transferred the DEPB scrips to someone else. We find that other than Section 28 for demand of nonlevied, short-levied....
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....s have already been discussed by the adjudicating authority in the impugned order. 10. To counter, Sh. Lakshmikumaran submits that the appellant during the relevant period was exporting chilled meat. He submits that the meat was to be supplied on short notice as and when space in the aircraft was available. He submits that in the certificate only two columns were left blank, namely the name of the importer and details of vessel. Rest formalities were fulfilled by the concerning division. He submits that as the meat will have to be exported on short notice unfilled columns were completed. It is his submission that only one Inspector was posted in the district and it is not possible for entire supply boneless buffalo meat from the factory to be inspected by the Inspector. According to the ld. Counsel, the department has observed that certificate is not correct. DGFT is the competent authority for granting or cancelling the license which was never done till today inspite of the recommendation made by the department. The exporter as well as DGFT and all importers are happy except the department. He submits that the demand is totally illegal, baseless and may be set aside. He also subm....
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.... laws it has been held that the Customs Department cannot demand such duty under section 28 from the license holder who has already transferred such license to others who in turn have undertaken imports duty free. 15. The ld. DR on the other hand has sought to distinguish the above cases. He has relied on the following cases: i. Sravani Impex Pvt. Ltd. Vs. Addl. DIR General Chennai - 2010 (252) ELT 19 (AP) ii. Tejwant Singh Vs. CC New Delhi 2010 (253) ELT 273 (Tri-Del) 16. After considering the above case laws and perusal of the appeal record, we find that the relevant period involved in the present case is 01.04.2006 to 31.10.2010 and the show cause notice has been issued on 30.05.2011 to the person to whom such scrips were issued. 17. In the case of The Thar Dry Port & Ors. (Supra), the show cause notice has been issued on 07.08.2013 when the section 28AAA was already in existence w.e.f. 28.05.2012. Hence the show cause notice has covered the period both prior to introduction of the new section and subsequent to that. We also note that in that case the matter has been remanded to the adjudicating authority for re-determination of the demand. Hence, we are of the view that ....
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....ment exempted certain goods from customs duty subject to the condition that the importer was issued a DEPB by the licencing Authority at the rate notified by the Government of India for the products exported and that the DEPB is produced before the Customs officer for debit of the duties leviable on the goods but for the exemption contained in Notification No. 45 of 2002. Under the proviso, exemption of duty was not to be admissible if there was insufficient credit in the DEPB for debiting the duty leviable on the goods but for the exemption. It is evident that the DEPB Scheme, as covered by Customs Notifications dated 22-4-2002, is a customs duty exemption notification. The power to exempt would include within its ambit the power to demand duty in the event such exemption is misused. 42. Under Section 11(2) of Act 22 of 1992, where any person makes or abets or attempts to make any export or import, in contravention of any provision of the Act or the rules, he shall be liable to a penalty and under Section 11(5), in cases where the provisions of the Act or the rules are contravened, the goods are liable to confiscation by the Adjudicating authority. Section 12 of Act 22 of 1992 p....
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....fter investigation into the affairs of the appellant, the Department has opiend that the Foreign Trade Policy specifies that the government appointed doctor would issue a certificate ante mortem and post-mortem of animals at the time of slaughter. The investigation has revealed that certain blank certificates duly signed by the doctors were found in the appellant's factory at the time of their search along with the relevant seals. The allegation is that the veterinary doctors never supervised such slaughter and hence, all such certificates were not valid but only an empty formality. 22. The Ld. counsel for the appellant has argued that the chilled meat is often cleared for export on short notice after the availability of space in the air craft is known. The certificates were signed by the veteran Doctor with only 2 columns left blank, viz. the name of the importer and the details of the vessel. He contended that all the rest of the formalities were fulfilled. It is further been argued that DGFT is the competent authority for granting or cancelling the license which has never been done till date. 23. We note that the main evidence obtained by customs Department in the investigatio....