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TaxTMI 
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2025 (11) TMI 1457
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....issioner for considering the issues afresh in the light of the observations made in the order. As a consequence of the remand order, the Commissioner passed the order dated 13.04.2007 which was assailed before the Tribunal in the present appeal. This appeal was allowed by order dated 13.06.2017 by remanding the matter to the adjudicating authority to first decide the issue whether the Directorate of Revenue Intelligence had the jurisdiction to issue the show cause notice. This order was assailed by the department before the Delhi High Court and by a judgment dated 24.05.2023 the order dated 13.06.2017 passed by the Tribunal was set aside and the appeals were restored before the Tribunal to be heard and decided on merits. This is how the matter has come up for hearing. 3. It appears from the records that the appellant had purchased 5 Gold Replenishment Licenses [licenses] that were issued in favour of M/s Shivam Enterprises and M/s Shyam Exports. These licenses were issued under paragraph 8.37 of the Export and Import Policy for the year 1997-2007 which reads as follows: "An exporter is eligible for freely transferable Replenishment (REP) Licence at the rate of 87% ....
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....under section 138B of the Customs Act has not been followed. 7. Shri Nikhil Mohan Goyal, learned counsel appearing for the department, however, supported the impugned order and submitted that it does not call for any interference in this appeal. Learned authorised representative submitted in view of the statements made under section 108 of the Customs Act, it cannot be denied that appellant was party to the fraud and, therefore, the confirmation of demand against the appellant is justified. 8. The submissions advanced by the learned counsel for the appellant and the learned authorised representative appearing for the department have been considered. 9. The first issue that arises for consideration is whether the appellant, as a purchaser of the licenses can be fastened with duty liability when it is a fact that the licenses that were purchased had been issued and were not forged. 10. This issue was examined by a Division Bench of this Tribunal in Apar Industries and after consideration of the various judgments of Courts and the decisions of the Tribunal, it was held : "31. What, therefore, transpires from the aforesaid decisions is that wherever the licensing a....
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....e DGFT. The signature and security seal of the authority was forged. Now in the present case, the REP licences were issued by the competent authority and as such were genuine documents. However, the original parties/exporters made fraudulent representation by giving forged documents to obtain such REP licences. As such there is a clear difference in facts between the case decided by the Hon'ble Supreme Court and the present case. In this connection, we may refer to the decision of the Hon'ble Supreme Court in East India Commercial Co. Limited - 2002-TIOL-138-SC = 1983 (13) E.L.T. 1342 (S.C.), it was held as under: "35. Nor is there any legal basis for the contention that licence obtained by misrepresentation makes the licence non est, with the result that the goods should be deemed to have been imported without licence in contravention of the order issued under Section 3 of the Act so as to bring the case within Clause (8) of Section 167 of the Sea Customs Act. Assuming that the principles of law of contract apply to the issue of a licence under the Act, a licence obtained by fraud is only voidable : it is good till avoided in the manner prescribed by law. On May 1, 1948, ....
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....14. Tribunal in CC v. Patiala Castings Pvt. Ltd. - 2012 (283) E.L.T. 269 examined this issue and held that in the absence of evidence that the transferee have not acted bona fide or was aware of the fraud committed by the original holder of licence, duty cannot be recovered from them. 15. In a recent case while disposing of a large batch of appeals the Mumbai Bench of the Tribunal reported as 2015-TIOL-2090-CESTAT-MUM = 2015 (324) E.L.T. A127 (Tribunal), examined the whole gamut of case laws relevant to the issue and held that duty cannot be demanded from the transferors as in such situation where the licences were genuine but obtained by fraudulent representation they can be made only voidable and imports which happen prior to the cancellation cannot be held as improper. The Tribunal also noted the insertion of new legal provision as Section 28AAA in the Customs Act, 1962 to meet such situation. 16. Considering the above analyses, we find that the duty demand confirmed by the impugned order cannot be sustained. We accordingly set aside the impugned order and allow the appeal." (emphasis supplied) 34. The Punjab and Haryana High Court in Pee Jay ....
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....it evident that the statement recorded before the concerned Officer during the course of any inquiry or proceeding shall be relevant for the purpose of proving the truth of the facts which it contains only when the person who made the statement is examined as a witness before the Court and such Court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence, in the interests of justice, except where the person who tendered the statement is dead or cannot be found. In view of the provisions of sub-section (2) of section 9D of the Central Excise Act or sub-section (2) of section 138B of the Customs Act, the provisions of sub-section (1) of these two Acts shall apply to any proceedings under the Central Excise Act or the Customs Act as they apply in relation to proceedings before a Court. What, therefore, follows is that a person who makes a statement during the course of an inquiry has to be first examined as a witness before the adjudicating authority and thereafter the adjudicating authority has to form an opinion whether having regard to the circumstances of the case the statement should be admitted in evidence, in the inte....