TaxTMI 
TaxTMI 
2025 (12) TMI 832
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....s remitted to the Commissioner 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 4 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....
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....s the procedure contemplated 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 that the appellant was aware there was some issue in the licenses issued to M/s Shyam Exports and M/s Shivam Enterprises because it is after filing of the Bills of Entry, the appellant had written a letter to DGFT enquiring about the licenses and this would have been done only if the appellant was aware that there was some issue with the licenses. Learned authorised representative, therefore, submitted that since the appellant was a party to the fraud, no relief shall be granted to the appellant as fraud vitiated. Learned authorised representative also 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 repr....
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....been put to question. This is clear from the fact that the fraudulent submission of forged bank document/shipping bills by the original exporters who obtained the REP licence was unearthed much later by the detailed enquiry of the officers. We find the original authority extensively quoted and relied on the decision of Hon'ble Supreme Court in CC (Prev.) v. Aafloat Textiles (I) P. Ltd. - 2009 (235) E.L.T. 587 (S.C.). We have perused the said decision. The Hon'ble Supreme Court in that case was dealing with a Special Import Licence (SIL) which was forged and was never issued by the 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....
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....IV), Faridabad - 2009 (246) E.L.T. 18 (P&H). We find that these decisions were dealing with forged DEPB scripts. As already noted in the present case we are not dealing with forged licences. The licences have been issued by Competent Authority and were valid till they were cancelled by the competent authority. They were not forged licences. Various case laws examined indicate that the consequences of bona fide buyer using a forged licence or bona fide buyer using a genuine licence but obtained on submission of fabricated or forged documents by the transferors vary. 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 l....
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....t, 1944 and observed as follows: "21. It would be seen section 14 of the Central Excise Act and section 108 of the Customs Act enable the concerned Officers to summon any person whose attendance they consider necessary to give evidence in any inquiry which such Officers are making. The statements of the persons so summoned are then recorded under these provisions. It is these statements which are referred to either in section 9D of the Central Excise Act or in section 138B of the Customs Act. A bare perusal of sub-section (1) of these two sections makes 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) ....