TaxTMI 
TaxTMI 
2026 (8) TMI 1237
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....1, CM APPL. 4160/2024, CM APPL. 16683/2026. - -<br>Customs<br>HON'BLE MR. JUSTICE ANIL KSHETARPAL AND HON'BLE MS. JUSTICE SHAIL JAIN CUSAA 82/2023, CM APPL. 57697/2023, CUSAA 83/2023, CM APPL. 57699/2023, CM APPL. 27569/2026, CUSAA 177/2025, CM APPL. 79867/2025, CM APPL. 79870/2025, CM APPL. 16640/2026, CUSAA 178/2025, CM APPL. 80092/2025, CM APPL. 80096/2025, CM APPL. 16648/2026, CUSAA 179/2025, CM APPL. 80160/2025, CM APPL. 80163/2025, CUSAA 180/2025, CM APPL. 80234/2025, CM APPL. 80238/2025, W.P.(C) 12233/2019, CM APPL. 4168/2024, CM APPL. 16717/2026, W.P.(C) 15114/2025, CM APPL. 62118/2025, W.P.(C) 8248/2020, CM APPL. 26724/2020, CM APPL. 32123/2021, CM APPL. 4160/2024, CM APPL. 16683/2026, W.P.(C) 9868/2020, CM APPL. 31491/2020, CM APPL. 16695/2026, W.P.(C) 9869/2020, CM APPL. 31493/2020, CM APPL. 16715/2026, W.P.(C) 8039/2021, CM APPL. 25019/2021, CM APPL. 4163/2024, CM APPL. 16707/2026, W.P.(C) 8122/2021, CM APPL. 25215/2021, CM APPL. 32144/2021, CM APPL. 16716/2026, W.P.(C) 232/2022, CM APPL. 4166/2024, CM APPL. 16691/2026, W.P.(C) 6209/2022, CM APPL. 4194/2024, CM APPL. 16689/2026, W.P.(C) 6239/2022, CM APPL. 4193/2024, CM APPL. 16706/2026, W.P.(C) 6299/2022, CM....
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....023, CM APPL. 36302/2023, CM APPL. 4176/2024, CM APPL. 16713/2026, W.P.(C) 9506/2023, CM APPL. 36338/2023, CM APPL. 4192/2024, CM APPL. 27910/2026, CM APPL. 43105/2026, CM APPL. 45432/2026, W.P.(C) 11246/2023, CM APPL. 43800/2023, CM APPL. 4159/2024, CM APPL. 16708/2026 Parveen Kumar Jain, Bimal Papers Pvt. Ltd., Ms Mukta Enterprises, M/s Raja Ram And Company, Rajinder Kumar Jain, Jinender Kumar Jain, M/s Sumat Pershad And Sons And Anr., Ms Kapil Pap Mart Pvt. Ltd., M/s Juneja Papers Pvt. Ltd. & Anr., M/s Suneja Sons & Anr., M/S Kraftline International & Ors., Ms Juneja Trade Links, Ajay Paper Corporation, S.D. Enterprises, Khurana Paper House, M/s Shree Paper Co. Pvt. Ltd., M/s S.D. Enterprises, M/s Raja Ram And Co & Anr. Ms Khurana Paper House & Ors., Ms Birdhi Chand Girdhari Lal Papers Pvt Ltd & Anr., Ms Kraftile International, M/s Shital Paper Impex, M/S Kalra Paper Converter And Trader Pvt. Ltd. & Ors. M/s Kapil Pap Mart Pvt Ltd & Anr., Ms Kalra Paper Products Pvt Ltd & Ors., Ms Diamond Copy House & Anr., M/s Sona Papers Pvt. Ltd. & Anr., M/s Juneja Papers Pvt Ltd & Anr., Indira Offset Printers Pvt Ltd & Anr., M/s Arun And Co. & Anr., Ms Suneja Sons And Anr., M/S Jain Enter....
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....s the lead matter for deciding the batch of Customs Appeals, whereas W.P.(C) 12233/2019 is being treated as the lead matter, as and when required, for deciding the connected batch of Writ Petitions. B. BRIEF BACKGROUND: 4. Pithily put, during the relevant period, Appellant imported paper and paper articles through ICD and discharged applicable customs duty by utilising transferable scrips issued under various export promotion schemes formulated under the Foreign Trade Policy (FTP), including the Duty Free Import Authorisation ('DFIA'), Focus Product Scheme ('FPS'), Focus Market Scheme ('FMS'), Vishesh Krishi and Gram Udyog Yojana ('VKGUY') and Duty Entitlement Pass Book ('DEPB') Scheme. 5. Notably, these scrips, once issued by the Directorate General of Foreign Trade ('DGFT'), are freely transferable in terms of the applicable FTP and are capable of being utilized for payment of customs duty upon registration with the Customs Authorities ('CA'). 6. The present impugned proceedings find their genesis in the detection of large-scale irregularities in the Electronic Data Interchange ('EDI')/Indian Customs EDI System ('ICES') functioning at ICD. The investigation undertaken....
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....r of Customs (Export) and Anr., wherein this Court by way of its Order dated 06.09.2019, while disposing of the said Petition directed the Respondents to decide the Petitioner's representation dated 30.07.2019, seeking cross examination of witnesses and production of certain documents. 13. Thereafter, the Adjudicating Authority proceeded to pass an OIO dated 11.10.2019, which came to be the subject matter of challenge in W.P.(C) 12233/2019, wherein the Petitioner, raised a ground that despite earlier directions of this Court, the request for supply of documents were not conceded. The said Petition, however, was disposed of by way of judgment dated 27.11.2019. 14. Aggrieved thereby, the Petitioner approached the Supreme Court by way of SLP(C) No. 30509 of 2019 captioned M/s Sumat Pershad and Sons & Anr. v. Commissioner of Customs (Export) & Anr., wherein the Court by its Order dated 09.01.2020, granted liberty to the Petitioner to seek review of the judgment dated 27.11.2019, with the following observations: "Learned counsel for the petitioners invited our attention to paragraph 39 of the Writ Petition to contend that the specific grievance of the petitioners was that....
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....ly presented, verified, and accepted as genuine by the CA between 2011 and 2015. Therefore, the presumption of forgery without comparing it against original documents is legally unsustainable, as a forgery must be proven against an original document, not a subsequent electronic copy. 17.3 Learned senior counsel, has argued that the Respondent's approach is glaringly contradictory to its own established statutory regulations and procedures, as well as its own RTI replies. It is his case that the import customs clearance process operates in two stages. At the first stage, the goods get cleared after physical verification; following which, at the second stage, the data is entered into the EDI system, both of which falls exclusive within the domain of the CA. 17.4 Reference has also been made to the statutory procedure involving a stringent seven-stage process, namely, (i) registration of Duty Free Licence on Customs Computer System after verification of Physical copy of Licence; (ii) in-line verification of Licence; (iii) approval of Licence Registration by higher authority; (iv) debits on physical copy of Licence and on-line debit....
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.... entries) and totally ignoring the relevant material (the physically verified original documents), the decision is manifestly erroneous. 17.9. Relying upon the comparative chart placed on record, it is contended that material discrepancies exist between the original BoE and the EDI records, including alterations in dates and registration numbers. For instance, dates and registration numbers were mysteriously and maliciously altered only in the electronic records, such as a license dated "22.02.2010" being manipulated to "02.02.2010" by simply removing the "2", while the original physical documents remained unchanged. Such discrepancies establish that any manipulation occurred within the Department-controlled EDI system and not in the documents submitted by the private parties. 17.10 While impugning the Order of the CESTAT, it has been argued that the reliance upon Munjal Showa Ltd. v. Commissioner of Customs and Central Excise (2022) 22 GSTR-OL 168, is misplaced, as in that case forgery of the scrips was independently established, whereas in the present case the scrips were genuine, verified and accepted by CA at the time of clearance. 17.11 Lastly, it is....
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....ng invoices and making payments to Mr. Sharafat Hussain's front-end entities. Hence, the absence of direct documentation from M/s Kirti Cargo and billing by unrelated third parties should have prompted verification of the scrips and licenses by the importers. 19.3 Learned counsel further relied upon the judgment of Commissioner of Customs (Preventive) v. M/s. Aafloat Textiles India Pvt Ltd & Ors. (2009) 11 SCC 18 and the principle of caveat emptor, applying the rationale therein to the present matter. He argued that a buyer purchasing rights or licenses from another is bound in law to take requisite precautions regarding the title and genuineness of the purchase and the private parties having failed to undertake any verification, must face the legal and financial consequences of the fraud. 19.4 It is contended that under Section 46(4) of the Act of 1962, the importers are statutorily required to subscribe to a declaration attesting the absolute truth and correctness of the contents of the BoE. However, by using BoE containing manipulated scrips the importers clearly mis-declared the facts, leading to the non-payment of legitimate duty. It is argued that even if it....
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....at Hussain, and thereafter registered in the EDI system either at artificially inflated values or after their entitlement stood exhausted, or, in certain instances, on the basis of fictitious instruments. 22. It is against this factual backdrop, and more particularly in the light of the statements and admissions recorded under Section 108 of the Act of 1962, that the issues framed for consideration are required to be examined. The relevant statements of Mr. Jinender Kumar Jain, as well as the communication of Mr. Sharafat Hussain received in the Customs office on 19.07.2016, which forms a part of the analysis is reproduced hereunder: "4. And whereas, the assessee was summoned under Section 108 of Customs Act, 1962 to tender their true and correct statement and bring all the documents related to their Bills of Entry for import vide summons dated 19.01.2016 (RUD-I). In response to the said summons, Sh. Jinender Kumar Jain, Partner in the assessee firm appeared before the Superintendent (SIIB) on 22.01.2016 and his statement was recorded under Section 108 of the Act (RUD-II), wherein, he inter alia stated that the other partner in the assessee firm was his brother Sh. Devi....
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....er Kumar Jain as to whether they ever tried to stop Sh. Sharafat Hussain from utilizing any license for payment of Customs duty on their behalf without their permission, to which he categorically stated once or twice they instructed Sh. Sharafat Hussain verbally not to use licence but nothing was given in writing. Thereafter, he was asked as to when Sh. Sharafat Hussain was not listening to their instructions, then why they still kept on availing his services, Sh. Jinender Kumar Jain stated that Sh. Sharafat Hussain's services were better to some extent when compared to other agents; that prompt collection of documents after receiving out telephonic call, filing of Bill of entry at the earliest, less demurrage charges etc. were main points in Sh. Sharafat Hussain's services. On being specifically pointed as to whether defiance of their instructions by Sh. Sharafat Hussain did not alert them about Sh. Sharafat Hussain's mischievous activities, Sh. Jinender Kumar Jain stated that no they never got alerted as they did not doubt Sh. Sharafat Hussain's activities. On being asked as to whether they were aware that rest of their Import duties were being paid through the us....
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....e hence they never ensured that the particulars filled in the Bill of entry were true and correct; that they always thought them to be correct since they were checked by the customs; that they do agree that such scrips are cash in kind. On being asked as to if at some stage, those scrip's were found to be tampered or fictitious, could they be utilized for payment of duty and what they had to say on such scrips, he stated that these scrips cannot be used for payment of duty; that in his opinion, it is the importer who is importing goods is responsible for payment of Customs duties; that CB works for the importer as a representative; that if CB has done any fraudulent activity after or before getting full duty amount or scrip premiums as mentioned in the Bill of Entry which was processed by the Customs, CB should only be responsible. After explaining the provisions of section 12 of Customs Act, 1962, he was specifically asked as to who has to ensure as to correct duty has been paid into government's revenue on imports made, he stated that when the goods have been received in their godowns, it means all the duties have been paid and they as importer have paid the duty; that th....
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...., any company/firm of Sh. Sharafat Hussain raised them any bill/invoice? If yes, then on what account such documents were raised, he stated that company/firms of Sh. Sharafat Hussain used to raise their bills/invoices in respect of Custom entries, examination, transportation, sundry charges, labour charges agency charges and miscellaneous charges. On being asked as to whom they had authorized for the services of Custom House Agent, whether, it was M/s Kirti Cargo or any company/firm of Sh. Sharafat Hussain, he stated that they had authorized M/s Zealous International for their Custom Clearance purpose and no authorization was given to M/s Kirti Cargo; that no written authorization was given to M/s Zealous International, they were verbally authorized to act as for their Custom clearance purposes On being asked as to who was giving them the bills of M/s Kirti Cargo after 28.06.2013, he stated that it was given by Sh. Sharafat Hussain or some of his employee. After reminding him that as per his statement M/s Zealous International was authorized by them verbally for the purpose of clearance of Custom clearance, he was specifically asked that did they raise any objection as part of cust....
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.... Kirti Cargo. After confronting him with the fact that Kirti Cargo's name always appeared on their Bills of entry which implies that the CHA was M/s Kirti Cargo and not any company or firm of Sh. Sharafat Hussain, he was asked as to whether they ever raised doubt or any query in this regard with Sh. Sharafat Hussain as to why major clearing charges were claimed by his company/firm and not the actual CHA i.e. M/s Kirti Cargo, he again replied in negative and stated that they never raised any query or doubt with Sh. Sharafat Hussain in this regard. On being asked as to who was providing them the services of Custom House Agent? Was it M/s Kirti Cargo or M/s Zealous Overseas Pvt Ltd/ M/s Zealous International or any other firm of Sh. Sharafat Hussain, he stated that M/s Zealous International with proprietor as Sh. Sharafat Hussain was providing them the services of Custom House Agent; that he did not know as to whether M/s Zealous International was also holding any Custom House Agent license. Thereafter on being asked as to when they did not know as to whether M/s Zealous International was holding any Custom House agent license or not then did not they try to verify as to on what a....
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.... 6. And whereas, a statement of Sh. Ramesh Chadha, Proprietor of Customs broker firm M/s Kirti Cargo, F-110, First floor, Kirti Nagar, New Delhi-15 was recorded under section 108, of Customs Act, 1962, on 15/09/15 (RUD-IV), wherein, he interalia stated that he was having CB licence No. R80/98 dated 27/10/98, renewed upto 31/12/2018; that there were 9 (nine) 'G' card holders of his firm; that Sh. Sharafat Hussain was one of them, holding 'G' Card No.484/99; that only 5 persons out of the 9 'G' card holders namely Sh. Sharafat Hussain, Sh. Manmohan, Sh. Roop Tanwar, Sh. Vishal Kohli and Sh. R.K. Tiwari were coming to ICD, TKD for clearance work; that Sh. Sharafat Hussain, Sh. Manmohan and Sh. Roop Tanwar were looking after clearance of paper consignments (Import) and Sh. Vishal Kohli and Sh. R.K.Tiwari were looking after general cargo. On specifically being asked, he stated that Sharafat Hussain was looking after the entire work related to clearance of paper consignments. He further stated that since last 5 or 6 years, due to old age, sickness and bad health, he was unable to supervise the whole business of M/s Kirti Cargo and Sh. Sharafat Hussain was l....
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....opolitan Magistrate, Patiala House Courts, New Delhi through Special Public Prosecutor. Further, Directorate of Revenue Intelligence, New Delhi being the nodal agency of Central Board of Excise & Customs, Department of Revenue, Ministry of Finance, Government of India was requested vide this Commissionerate's letter C. No. VIII/ICD/6/TKD/SIIB-Exp/Scrip/102/2015/Pt-1/27976 dated 21.12.2015 to get Look Out Circulars issued from Ministry of Home Affairs in respect of both these individuals. Further, Assistant Commissioner of Police, Cyber Crime Cell, New Delhi vide this Commisionerate's letter C.No. VIII/ICD/6/TKD/SIIB-Exp/Scrip/102/2015/ 3869-3870 dated 05/02/16 was also requested to register First Information Report and to initiate action under the provisions of Information Technology Act, 2008 read with applicable provisions of Indian Penal Code, 1860 (as amended). On the basis of complaint / information shared with EOW, the EOW has converted the complaint against Sh. Sharafat Hussain and Sh. Vinod Kumar Pathror into FIR No.0151 dated 19.09.2016. xxxx xxxx xxxx xxxx 10. And whereas, Sh Sharafat Hussain, vide letter dated NIL (RUD-XVIII) received in this of....
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....registration in EDI System." (emphasis supplied) In re: Issue I 23. The primary contention advanced by the Appellant is that the scrips were initially issued by the DGFT and were subsequently found to have been forged or manipulated due to tampering of the EDI system, without the Appellant having any knowledge or participation on their part. Accordingly, it is urged that they are entitled to protection as bona fide purchasers. However, the said submission, requires the examination by this Court under three distinct questions, which are as follows: a. Whether, the Appellant can avoid liability for the actions taken by Mr. Sharafat Hussain on its behalf? b. Whether the Appellant is entitled to claim an equitable defence of a bona fide transferee as envisaged under Section 41 of the Transfer of Property Act, 1882 [hereinafter referred to as Act of 1882]? c. Whether the Appellant can claim protection under principle of caveat emptor? In re: Sub Issue a 24. The plea of bona fide purchaser raised on account of the Appellant is to be examined in light of the settled principles governing the relationship of principal and agent. The attempt of....
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....g authorised Mr. Sharafat Hussain to undertake customs-related activities and having derived the benefit arising therefrom, the Appellant cannot selectively disown responsibility for the manner in which such benefit was obtained. The Appellant cannot be permitted to accept the advantages flowing from an agency relationship while avoiding the corresponding legal consequences arising from acts performed within the scope of such authority. 31. The aforesaid interpretation. if accepted, would defeat the very purpose of Section 147 of the Act of 1862, which permits an importer to transact business through an authorised representative, but does not create immunity from the consequences of acts performed by such representative in the course of the authorised so granted. Accordingly, in view of the aforesaid statutory provisions, the Appellant cannot evade liability arising from the acts of Mr. Sharafat Hussain, once it has expressly authorised him to act on its behalf. In re: Sub Issue b 32. Section 41 of the Act of 1882, in its express terms, relates to transfer by an ostensible owner of immovable property, the principle underlying the provision is founded upon the doctrine of e....
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....rement finds further force in the principle of nemo dat quod non habet. 37. In the present case, what also becomes relevant to highlight is that the application of nemo dat quod non habet, is not with reference to the validity of the scrips as instruments simpliciter, but to the extent of the entitlement that stood represented by them. Notably, the scrips having been originally issued by the DGFT, to that extent represented genuine entitlements. However, the enhanced value reflected in the EDI system, exceeded the entitlement actually granted by the competent authority, inasmuch as such enhanced entitlement was never lawfully possessed by the transferor/Mr. Sharafat Hussain, and consequently, could not have been transferred to or acquired by the Appellant merely by virtue of the manipulated EDI entries. 38. In the present case, the investigation revealed one of such circumstances, wherein, although the scrips had originally been issued by the DGFT in favour of M/s K S Impex and subsequently transferred to M/s Zealous Overseas Pvt. Ltd., the values registered in the EDI system were found to be substantially higher than the actual entitlement granted by the competent authority.....
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....xtent, Mr. Sharafat Hussain occupied the position of a person having authority to undertake customs clearance activities for and on behalf of the Appellant. 42. Accordingly, the Appellant cannot escape responsibility for acts performed by Mr. Sharafat Hussain in the course of such agency, as discussed in the preceeding paragraphs under Sub-Issue a (Supra). Since the fraudulent/forged/manipulated scrips were utilised for clearance of goods imported by the Appellant, the responsibility to verify the genuineness, validity and lawful entitlement of such scrips rested upon the Appellant, being the importer and the ultimate beneficiary of the duty benefit, which it failed to do. 43. Moreover, the Appellant admitted that, despite agency charges being raised in the names of two different entities, namely M/s Kirti Cargo (25%) and M/s Zealous International (75%), and despite the BoE reflecting the name of M/s Kirti Cargo, it never sought any clarification regarding these apparent inconsistencies. Likewise, the Appellant entrusted customs clearance work to M/s Zealous International without verifying whether it possessed the statutory licence required to undertake such functions. The af....
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....authority. In the present case, the scrips had a genuine underlying DGFT entitlement; however, the entitlement reflected in the EDI system had been inflated beyond the amount actually granted. 48. To that extent, Mr. Sharafat Hussain possessed no lawful entitlement capable of being transferred, therefore, the maxim nemo dat quod non habet operates against the Appellant. Having failed to exercise reasonable care to ascertain the genuineness and extent of the scrip entitlement, and having furnished incorrect declarations under the Act of 1962, the Appellant cannot claim protection as a bona fide purchaser or avoid the consequences arising from utilisation of the excess entitlement. In re: Sub Issue c 49. The maxim of caveat emptor, which means 'let the buyer be aware', places an obligation upon the purchaser to make necessary enquiries and satisfy itself regarding the genuineness, validity and authority attached to the rights or instruments being acquired. 50. The Supreme Court in Aafloat Textiles (Supra), applied this principle in the context of forged import license and held that a purchaser of transferable licences must establish that it had undertaken necessary enquir....
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.... 56. The contention of the Appellant regarding non-production of the original scrips proceeds on the assumption that the Respondents' case rests solely upon proving the physical forgery of the said instrument. However, as already discussed in the preceeding paragraphs the foundation of the present controversy lies in the revelations made during the investigation by CA. 57. The investigation unequivocally established that the scrips reflected in the EDI system had either been artificially enhanced, repeatedly utilised beyond the entitlement originally granted by the DGFT, or did not correspond with any lawful entitlement whatsoever. Consequently, the evidentiary foundation of the proceedings rests not merely upon the physical scrips but upon the DGFT entitlement records, Customs registration data, ICES/EDI transaction trails, system-generated electronic records and the statements recorded during investigation. 58. In these circumstances, the mere non-production of the original scrips cannot, by itself, undermine the proceedings. The law pertaining to non-production of documents is governed by the principles embodied under Section 119 of the Bharatiya Sakshya Adhiniyam, 2023.....
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....64. Equally devoid of merit is the grievance regarding denial of cross-examination of the Customs officers inasmuch as the Appellant has failed to demonstrate what material fact could have been elicited through such cross-examination or how the absence thereof has caused any adverse consequence to their defence. A mere assertion that cross-examination was denied, unaccompanied by any demonstrable prejudice, is manifestly insufficient to invalidate the proceedings. 65. Furthermore, it is to be noticed that during the course of investigation repeated summons under Section 108 of the Act of 1962 were issued to Mr. Sharafat Hussain at the addresses of M/s Kirti Cargo as well as M/s Zealous Overseas Pvt. Ltd. requiring him to tender his statement. Despite repeated opportunities, he deliberately failed to appear before the investigating authorities. Thereafter, searches were conducted on more than one occasion at his registered addresses; however, he could not be traced. Following which, lookout circulars came to be issued against him culminating into registration of an FIR. 66. Thereafter, Mr. Sharafat Hussan, in a written communication addressed to the CA, claimed to be a bona fi....
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.... of cross-examination being sought by the Appellant. In re: Issue III 72. The present issue is borne out of separate questions framed by this Court in its Order dated 03.09.2024 in CUSAA 82/2023 and CUSAA 83/2023, concerning penalties under Sections 112(b) and 114A of the Act of 1962. However, since the both the provisions pertain to imposition of penalty arising from similar transaction, they are being dealt with together. 73. Section 114A of the Act of 1962, is attracted where duty has not been levied or has been short levied by reason of fraud, collusion, wilful misstatement or suppression of facts with an intention to evade payment of duty. The last proviso to Section 114A further manifests the legislative intent that where penalty is imposed under the said provision, no separate penalty shall be leviable under Section 112 or Section 114 of the Act of 1962. 74. In view thereof, the issue framed with respect to Section 112 of the Act of 1962, loses its significance and does not survive for determination by this Court. However, we shall proceed to examine whether the acts of Appellant, attracts the penalty prescribed under Section 114A of the Act of 1962. 75. The p....