TaxTMI 
TaxTMI 
2005 (12) TMI 107
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....or short, 'the Act'). 2. Since the basic ground, on which the said action was taken against both the petitioners is identical, for the sake of convenience, both the petitions are being disposed of by this common order. However, for the sake of ready reference. Extracts of C.W.P. No. 15278 of 2004 are taken as illustrative. These are as follows: 3. With a view to boost exports, the Government of India announces various incentives, which include exemption from payment of central excise duty, customs duty etc. and formulation of various schemes under the import and Export Policy, known as EXIM policy. The said policy is declared under Section 5 of the Act. It is declared for a period of five years, though amendments therein are c....
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....1999 for the value of Rs. 2,79,436/-. Admittedly, the export proceeds were realised on 6-9-1999. 6. On the basis of some information received by respondent No. 1 to the effect that some exporters had obtained DEPB on the basis of forged bank certificates of Export and Realisation, on 11-6-2001, two show cause notices under Section 14 for action under Sections 9(4) and 11(2) of the Act, were issued to the petitioner, inter alia, pointing out that their bankers had stated that they have not issued bank realisation certificate produced by them at the time of issuance of DEPB. The petitioner was, thus, called upon to show cause as to why penalty under Section 11(2) of the Act should not be imposed upon it and the DEPB licence should not be c....
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....order mainly on the ground that the respondents have acted arbitrarily in singling out the petitioners for levy of the aforementioned penalty and in revoking the DEPB, inasmuch as, under similar circumstances, no action had been taken against similarly situated concerns, who had also obtained DEPBs on the basis of forged bank realisation certificates. Neither their DEPBs were cancelled ab initio nor penalty under Section 11(2) of the Act was levied. It is also urged that on the facts in hand, provisions of Section 11(2) of the Act are not attracted because in the instant cases, neither the exports nor the imports had been made in violation of any provisions of the Act. Learned Counsel have also argued that cancellation of DEPB ab initio is ....
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....hat furnishing of bank certificate of exports and realisation of export proceeds was a pre-requisite for issue of DEPB. Admittedly, the bank certificates furnished were fabricated documents. The observations of the former Lord Chief Justice of England, Sir Edward Coke, more than three centuries ago, that "fraud avoids all judicial acts, ecclesiastical or temporal", noticed by the Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853, are apt for the instant case. The Apex Court has also observed that an act of deliberate deception with the design of securing something by taking unfair advantage of another is a "fraud". 'Fraud" is a cheating intended to get an advantage. A person whose case is based on falsehood has no ....
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.... under the Act. Suspension is an interim measure, pending passing of a final order, but cancellation envisages annulment, a complete abolition of the right for the exercise of which a licence is granted. The power to suspend or cancel the licence vested in the Director General is determined by reference to the language used in the Statute and not by reference to any predilections about the legislative intent. We are unable to read into Section 9(4) of the Act anything which would indicate that expression "cancel" means only revocation of a licence which is otherwise valid and operative and that too retrospectively. In our opinion, the power to cancel a licence includes cancellation of both, whether unutilised or utilised. 14. True, the c....
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....the provisions of that Act shall have effect accordingly." Sub-sections (1) and (2) are aimed at facilitating imports and increasing exports by conferring upon the Central Government power to issue orders in the Official Gazette, regulating, prohibiting or restricting in all cases or specified classes of cases, the import or export of goods. The object and purpose of sub-section (3) is to apply the prohibitions imposed under Section 11 of the Customs Act, 1962 to all goods to which any order under sub-section (3) applies and thereby to apply all the provisions of the Customs Act to the said goods. The provisions of sub-section (3) and the orders passed thereunder have to be read in conjunction with the provisions of the Customs Act, 1962....