2018 (7) TMI 926

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....ikdar (A.R.) For Respondent: Shri. Manish Jain (Advocate) ORDER Per : Ramesh Nair All these appeals filed by the Revenue against the orders of the Commissioner (Appeals). The issue involved in all the appeals are that whether the transferee of the DEPB licence which was fraudulently obtained by the transferor (exporter of the goods) is liable to pay the customs duty and whether the demand is time barred. 2. Sh. T. K. Sikdar, Ld. Assistant Commissioner (AR) and Sh. S.N. Gohil, Ld. Superintendent (AR) appeared on behalf of the Revenue reiterates the grounds of appeal and Sh. S.N. Gohil, Ld. Superintendent (AR) further submits that that the DEPB License was obtained fraudulently by over valuing the export goods by the exporter, ....

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....audulently but the same validly issued by the DGFT, therefore, the import made by the transferee under those transferred license cannot be denied the DEPB benefit to the transferee (importer). Therefore, the Ld. Commissioner (Appeals) has rightly dropped the demand against the transferee of the licensee. He further submits that since there is no malafide on the part of the transferee of the licensee even though the fraud was committed by exporter, the demand of extended period cannot be invoked against the transferee of the licensee, therefore, the Ld. Commissioner (Appeals) has rightly dropped the demand on the ground of time bar also. He submits that the Hon'ble Gujarat High Court in the case of Commissioner of Customs-Kandla vs Indian Ac....

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.... CC Vs. Aafloat Textiles P. Ltd 2009 (91) RLT 719 (SC) Larson Turbo Ltd Vs. CCE 2007 (211) ELT 513 (SC) Indian Petrochemicals Vs. CCE 2009 (237) ELT 317 (T) CC, Kandla Vs. Binani Cement Ltd 2009 (238) ELT 33 (Guj.) Indian Acrylic Ltd Vs. CC 2015 (325) ELT 753 (T) Prayagraj Dyeing & Printing Mills Pvt Ltd Vs. UOI 2013 (290) ELT 61 (Guj.) Ineos ABS India Vs. CC 2015-TIOL2891-CESTAT-AHM Sun Chemicals Vs. CC 2017 (358) ELT 1120 (T) Pee Jay International Vs. CC 2016 (340) ELT 625 (P & H) Singh World Vs CC 2017 (353) ELT 243 (T) CC Vs. Rajnarayan Jwalaprasad 2014 (306) ELT 592 (Guj.) 4. We have carefully considered the submissions made by both the ....

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....the extended period of limitation because the appellants could not be accused of misrepresentation, collusion or suppression of facts within the meaning of proviso postulated by section 28 of the Act. The appellant being a transferee of the DEPB-Ras, the ratio of the judgment and order of the Hon'ble Supreme Court in the case of Ajay Kumar & CO. (supra) and many other judgments relied upon by the appellant in support of their contentions on limitation is applicable to the facts of the present case and following the same, I hold that the demand in question is barred by limitation and accordingly, the appeal cannot be disposed in favour of the appellant on the ground of the demand being barred by limitation under Section 28 of the Act itself.....

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....finding that the importer had not paid the duty by reason of any collusion or any wilful misstatement or suppression of facts. Before the Tribunal, strong reliance was placed on behalf of the Revenue on the above referred decision of the Calcutta High Court wherein it was held that one may not be held liable for collusion or fraud and exposed to other penalties but would still be liable to pay duty and interest and other statutory consequences which one cannot avoid. The Tribunal, noted that there was no dispute that the importer had availed credit on the basis of the DEPB scrips which were issued by the DGFT authorities. At the time of import of goods, the DEPB scrips were not forged. That subsequently, upon finding that the exporter had m....