TaxTMI 
TaxTMI 
TaxTMI 
2007 (4) TMI 274
X X X X Extracts X X X X
X X X X Extracts X X X X
....ption Pass Book, which is commonly known as DEPB Scheme, issued to M/s. Parker Industries, 184, Dilbagh Nagar, Jalandhar, which order was upheld in appeal by the Additional Director General of Foreign Trade, then the assessee respondent, who had purchased the DEPB from M/s. Parker Industries, was not entitled to avail any benefit. 2. The Government of India in order to boost export had announced various concessions including exemption from payment of Central Excise Duty, Customs Duty and formulation of various schemes under the Import and Export Policy, known as EXIM Policy, which are formulated under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (for brevity, 'the Act'). DEPB is one of those schemes framed under th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he market. (d) That the main features of the DEPB scheme as operated under the Export Import Policy are the following : (i) Duty exemption under the scheme is available.against export of goods. (ii) The exemption is to be availed by debiting credits, which is to be earned at the specific rate notified by DGFT for the relevant product which is exported. (iii) The DEPB credit is subject to realisation of export proceeds. If the export proceeds are not realised within six months or such extended period as allowed by R.B.I., the D.E.P.B. Holder has to pay cash equivale....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... proposed penal action against them on the ground that they have just purchased the said transferable DEPB Scrip as genuine importer and had made no wilful mis-statement or fraud. I find nothing on record to infer that M/s. Vallabh Design Products, Ludhiana had purchased the freely transferable DEPB scrip otherwise than in a bona fide manner and utilized the same towards debit/exemption of duty and there is nothing to suggest of his having colluded with the exporter who obtained the DEPB scrips by fraudulent manner. Therefore, I do not hold them liable to penal action under Section 112 of the Customs Act, 1962. In view of above I pass the following orders : 1. I hold the goods valued at Rs. 2,09,252/- importer (imported?) vide Bill of Ent....
X X X X Extracts X X X X
X X X X Extracts X X X X
....005 (189) E.L.T. 135 (Tri.-LB) = 2005 (71) RLT 225 (CESTAT-LB). I may read Paragraph 33 : 'Where transfer has been effected without notice to the transferee of alleged fraud, the concept of fraud vitiate everything is not applicable as licence was transferred for value, arising out of importable transaction governed by any law.' 4. Accordingly since the issue is covered by the Larger Bench Division, I do not find any reason to sustain the impugned order. The impugned order is liable to be set-aside and I do so. Appeal allowed, with consequential relief, if any." 6. It is appropriate to mention that the Joint Director General of Foreign Trade vide its order dated 16-1-2002 had cancelled the DEPB issued on the basis of forged document BCE....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed Counsel also placed reliance on a Division Bench judgment of this Court in the case of The Commissioner of Customs v. M/s. Parker Industries, Jalandhar (Custom Act Appeal No. 1 of 2006, decided on 7-11-2006) [2007 (207) E.L.T. 658 (P&H)]. 8. Mr. Pawan Kumar Pahwa, learned Counsel for the assessee-respondent, has submitted that the DEPB scrip was transferred to the assessee-respondent by M/s. Parker Industries and the benefits by the assessee-respondent were availed on 7-11-1997, which amounted to Rs. 62,672/-. The Joint Director General of Foreign Trade cancelled the DEPB availed by the assessee-respondent on 16-1-2002. It has been emphasised that under Section 28 of the Customs Act, no notice could be issued to the assessee-respondent ....