2018 (1) TMI 775

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....tly on the basis of fake documents. As a fall out, DGFT vide order dated 19.04.2002, cancelled the DEPB scrips ab initio. A SNC dated 09.09.2003 was then issued to the appellants proposing demand of duty and penalty. The adjudicating authority vide the impugned order has confirmed the demand of duty of Rs. 51,05,919/- and also imposed a penalty of Rs. 30,00,000/- under Section 112 (a) of the Customs Act, 1962. Hence this appeal. 2. Today when the matter came up for hearing, on behalf of the appellants, Ld. Advocate, Ms. Swarupa made oral and written submissions, which can be summarized as under:- a) It is submitted that the appellant was not a party to the fraud and the scrips were purchased with a bonafide belief that those scr....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d both sides and have gone through the facts. 5.1 There have been a plethora of judicial decisions on this very issue. No doubt, while the Hon'ble Apex Court in their decision of 21.04.2004 had earlier taken the view propounded in the ICI India Ltd. case (supra), relied upon by the Ld. AR. However, the Apex Court on the very same issue, in a subsequent judgment dated 10.03.2008, reported in 2008 (227) ELT A29 (S.C) has dismissed an appeal against the judgment of Hon'ble Punjab & Haryana High Court in the case of Leader Valves Ltd., - 2007 (218) ELT 349 (P&H). The Hon'ble High Court in that case had held that when the assessee is not a party to fraud and purchased DEPB from the open market in the bonafide belief of its being genuine, it p....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ion or suppression of facts within the meaning of proviso postulated by Section 28 of the Customs Act. Therefore, there is no merit in this appeal." 5.2 We also find that a three member Bench of the Tribunal in the case of Binani Cement Ltd. Vs. CC, Kandla 2010 (259) ELT 247 (Tri.-Ahmd.), interalia referring to the Apex Court judgment in ICI India Ltd., discussed supra, have held that subsequent cancellation of DEPB licence, when licence already stood utilized and exhausted, will not have any effect on imports already made on the basis of such licences which were valid at the time of imports. The relevant portion of the said decision is reproduced as under:- "27. Admittedly, in the present case, the DEPB licences were cancelled ....