TaxTMI 
TaxTMI 
2008 (9) TMI 391
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....d raised under Section 28(1) of the Act, is not time barred in respect of Bill of Entry No. 1289 dated 22-5-2003 and two Ex-Bonds Bills of Entry Nos. 274 dated 23-6-2003 and 282 dated 26-6-2003 and consignments cleared on 27-5-2003, 23-6-2003 and 30-6-2003 respectively. (c) Whether in the state of law, remand is at all necessary on the aspect on payment of duty and imposition of penalty and on time bar when all the aforesaid three issues are settled by judgments of this Hon'ble Court in- (1) Commissioner of Customs v. Leader Valves Limited - 2007 (218) E.L.T. 349 (P&H) = 2007 (83) RLT 921; (2) Commissioner of Customs v. Vallabh Design Products - 2007 (219) E.L.T. 73. Confirmed by Hon'ble Supreme Court in Commissioner of Customs v. Leader Valves in SLP (Civil) No. CC3493 of 2008 vide order dated 10-3-2008, 2008 (227) E.L.T. A29. And on time bar in : (1) Commissioner of Customs v. Vallabh Design Products - 2007 (219) E.L.T. 73; (2) Commissioner of Customs v. Leader Valves Limited - 2007 (83) RLT 921; (3) Aban Lloyd Chiles Offshore Limited v. COC, Maharashtra reported as 2006 (200) E.L.T. 370 (S.C.) = (2006) 6 SCC 482 at 489 Para 19. (d) Whether Mr. Vijay Singh Bishnoi's state....
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....or home consumption. The appellant was thus required to show cause as to why - (a) the goods cleared under the bills of entries as mentioned under para 1 above should not be held liable for confiscation under Section 111(m) of the Customs Act, 1962; (b) the Customs duty amounting to Rs. 1,29,43,927/- should not be demanded under proviso to Section 28(1) of the Act ibid; (c) the amount of Rs. 1,29,43,927/- paid by them vide challan No. 1611 dated 12-08-2003 should not be appropriated under the Section 28(2) of the Act ibid; (d) interest on duty amount as payable above should not be demanded under Section 28AB of the Act ibid; (e) penalty should not be imposed on them under Section 114A of the Act ibid; 4. After considering the reply of the appellant, the Commissioner of Customs passed order dated 17-10-2007 holding that DEPB scrips were forged and thus ab initio void. Exemption availed of was inadmissible. Goods were liable to confiscation and noticees were liable to interest and penalty. The importer who claimed benefit on the basis of forged DEPB scrips stood at par with his predecessor and could not get benefit of forged documents. Immediately, after the clearance of goods....
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....cannot be allowed as it will amount to legalizing fraud. We are of the considered view that no benefit arising out of fraud cannot be claimed by the appellant company. 61. It is one thing to deny the benefit of exemption on the ground that licences used were fake licences. It is entirely a different thing to take a penal action. Penal action, in our opinion, is warranted only when there is knowledge or intention on the party of the appellants about the fraud committed." 6. We have heard learned counsel for the appellant and perused the record with a view to satisfy whether any substantial question of law was involved. 7. We are of the view that no substantial questions of law arise which may call for entertaining this appeal. We proceed to consider the questions proposed in the appeal as under :- Re. Questions (a) & (b) : 8. Learned counsel for the appellant submitted that there was no liability to pay duty as the licence had not been cancelled on the date of clearance and the documents on the basis of which exemption from duly was claimed, could not be treated as void. The appellant was not aware of forgery having obtained the documents for consideration and in good faith. Mo....
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....as been admitted even by the appellant before the Tribunal. Benefit of a forged document cannot be allowed to be retained. The judgment relied upon does not in any manner lay down that benefit of a forged document could be allowed to be retained. The principle laid down in the judgment relied upon which has been followed in other judgments cannot, thus, apply to the case of the present nature where benefit has been taken on the basis of a forged document. 13. In Sneha Sales Corporation (supra), import licence was cancelled after the import and following the judgment in East India Commercial Company (supra), it was held that on the date of clearance of goods, the licence was not non est. Both the judgments deal with the confiscation and not with the payment of duty. In Sampat Raj Dugar (supra) also the situation was identical as in East India Commercial Company (supra). 14. In Aban Lloyd Chiles Offshore Ltd. (supra), the Court was not concerned with taking of exemption by forged documents and the assessee being confronted with the forgery within three months and having paid the duty under protest, as in the present case. 15. We may also make a brief reference to the judgments of ....
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....ioners were fully aware that remittances had not been received, through the bankers whose certificates had been furnished. It clearly show the fraudulent motive. Being the ultimate beneficiaries of the DEPBs, they cannot be heard to say that they are innocent." 17. In the Commissioner of Customs, Commissionerate, The Mall, Amritsar v. M/s. Parker Industries, Jalandhar, 2007 (207) E.L.T. 658, a Division Bench of this Court after referring to judgment of the Hon'ble Supreme Court in Delhi Development Authority v. Skipper Construction Company (P) Limited, AIR 1996 SC 2005 observed :- "In Delhi Development Authority v. Skipper Construction Company (P.) Limited, AIR 1996 SC 2005, the Hon'ble Supreme Court considered the concept of resulting trust and equity. It was held that where a person earned properties by smuggling or other illegal activities, all such properties whether standing in his name or in the name of his relations or associates will be forfeited to the State. Though, the question herein is not of forfeiture of property illegally acquired but on parity, a person committing fraud is required to restore the benefits taken and cannot be heard to say that since the benefit wa....