TaxTMI 
TaxTMI 
TaxTMI 
2024 (10) TMI 843
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....ilized by the appellant for duty free imports under bills of entry No. 340495 dated 15.4.2010 and 342227 dated 26.4.2010. 1.2 By Show cause notice dated 28.1.2015 a demand of duty so forgone totally amounting to Rs. 19,01,494/- was demanded under proviso to section 28(1) jointly and severally from the appellant and from the exporter/Original license holder on the ground that the said license was fraudulently obtained by the exporter and that the same have been cancelled ab-initio by DGFT on 21.02.2014. 1.3 The appellant replied to the said Notice by its reply dated 23.3.2015, it was mainly submitted that notice is barred by limitation provided by proviso to section 28(1) of the Act; that extended period is not invokable to demand duty against the appellant as there is no allegation of any collusion or willful misstatement or suppression of facts against the appellant, and that they had purchased the said license through broker on payment of valuable consideration and after due diligence, and hence recovery of duty from the appellant amounts to double jeopardy. 1.4 However, learned Additional Commissioner of Customs, Kandla confirmed the demand of duty against the appellant under....
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....erated the impugned Order and relied upon the judgment in the case of Munjal Showa Ltd - 2022 (382) ELT 145 (SC) and further pointed out that in Civil Appeal No. 5608/2011 the DEPB scrip was procured fraudulently in support of argument that duty demand against the importer is sustainable even where the license itself is not forged but is obtained by fraudulent means. Countering the same, counsel for the appellant relied upon the findings in paras 8 and 10 of the said judgment to submit that the ratio of the said judgment relied upon by AR is restricted only to forged/fake licenses and scrips and that there is no adverse findings against genuine licenses/scrips i.e. the licenses/scrips actually issued by DGFT. He further relied upon the case of Wadhwani Commodities Trading & Ors - Final Order No. 75915/2016 dated 4.7.2023 of Tribunal whereby judgment of Munjal Showa was distinguished. 4. We have carefully considered the submissions made by both the sides and perused the records. The issue that arises for consideration is whether duty demand upon the appellant, who has in the normal course of business, obtained from open market a Focus Market Scheme license issued by DGFT which was ....
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.... - 2016 (336) ELT 474 (Guj.) as under: "[Order per : Harsha Devani, J. (Oral)]. - By this appeal under Section 130 of the Customs Act, 1962 (hereinafter referred to as "the Act"), the Commissioner of Customs, Kandla has called in question the order dated 22nd April, 2015 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (hereinafter referred to as "the Tribunal") in Appeal No. C/298/2007 [2015 (325) E.L.T. 753 (Tri.)] by proposing the following questions stated to be substantial questions of law :- (i) "Whether in the facts and circumstances of the case the CESTAT has erred in holding that extended period cannot be invoked in the present case and has erred in not appreciating the fact that the DEPB Scrips in the instant case were obtained by the importer fraudulently?" (ii) "Whether the CESTAT has erred in not appreciating the fact that fraud was involved in the present case and the DEPB Scrips in question have no existence in the eye of law?" (iii) "Whether the CESTAT has erred in not considering the decision of Hon'ble Calcutta High Court in the case of ICI India Limited v. Commissioner of Customs (Port), Kolkatta reported in 20....
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....audulently. It was submitted that having regard to the fact that the initial DEPB scrips were obtained through fraud, the same would vitiate everything and hence, DEPB scrips in question did not have any existence in the eye of law. It was further submitted that the Tribunal has failed to consider the decision of the Calcutta High Court in the case of ICI India Limited v. Commissioner of Customs (Port), Calcutta, 2005 (184) E.L.T. 339 (Cal.), wherein it has been held that credit can be availed only on the strength of a valid DEPB and if the same is forged, it is non est and, therefore, there is no valid DEPB. It was urged that the Tribunal was not justified in not appreciating the fact that in the matter of import under fake/fraudulent DEPB licence, when the document itself is found to be forged, whether there was collusion or fraud on the part of the importer in the issue of DEPB licence/scrips becomes absolutely immaterial and irrelevant since no credit can be derived from a forged DEPB. It was accordingly urged that the appeal deserves to be admitted on the questions as proposed or as may be deemed fit by this Court. 5. This Court has considered the submissions advanced by the....