TaxTMI 
TaxTMI 
2005 (5) TMI 196
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....3. Ashok Baburao Pokharkar, proprietor of Amol Shipping Agency, with the assistance of the abovesaid employees, caused forgery of the test reports, replacement of samples, preparation of forged copies of Bills of Lading, preparation of forged Shipping Bills, manipulation of blends of export fabrics, manipulation of weight and composition of the said fabrics, all to cause undue benefit to the exporter and cause loss of revenue. 4. Suresh Jumani is a director of M/s. Dharam Exports. During the material time, he called himself an exporter of textile fabrics. He obtained approximately 30 advance licences in the names of Dharam Exports and Dharam Impex. During the course of investigation, he was shown four Bills of Lading obtained in the name of Dharam Exports. He admitted that no fabrics were exported under the four Bills of Lading as the Bills of Lading themselves are bogus. He further stated that forged documents indicating shipments mentioned in the Bills of Lading were prepared by Shri Ashok Pokharkar of M/s. Amol Shipping. On the strength of these forged documents, advance licences were obtained. He thereon obtained transferability endorsement on the licences so obt....
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....proprietor of M/s. Amol Shipping under the same section for his labours in the whole episode. 8. He dropped the demands for duty on the actual importers who made use of the transferred licences. 9. The appellants before us are M/s. Dharam Exports on whom duty was demanded, Suresh Jumani on whom a penalty was imposed and Ashok Pokharkar, the proprietor of Amol Shipping Agency. 10 The learned . advocate Shri Doiphode appearing for M/s. Dharam Exports and its director, assailed the order on several grounds. He contends that principles of natural justice were grossly violated inasmuch as the case was decided ex parte without furnishing the documents relied upon/not relied upon. He argued that the Commissioner could not have demanded duty from M/s. Dharam Exports even in cases where he was not the importer. He relied on the decision of the Tribunal in the case of Jupiter Exports v. CCE wherein the Tribunal rejected the concept of deemed importer. He submitted that the original licence holder before transfer of the licence cannot be equated with the importer; that the fact that the appellant voluntarily deposited a certain sum of money does not make him the importer; that ....
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....e present context, the entire scheme of duty free imports under Advance Licence Scheme is for the avowed purpose of promoting exports by allowing duty free imports. The advance licence along with the DEEC book have to be read together to decide as to who the real importer is. The various entries in the DEEC book which is a statutory certificate, clearly indicate that the original licence holder remains to be an importer even after an advance licence is transferred. All duty liabilities would squarely befall him in case there is a short levy or non-levy. He argued that the Commissioner therefore rightly demanded the duty from M/s. Dharam Exports who obtained the duty free licences. The fact that such licences have been transferred should not make any difference to the issue. 13. On the issue that principles of natural justice are not followed by the Commissioner while adjudicating the case, he drew our attention to paras 27.2 to 27.5 of the impugned order wherein the Commissioner narrated the events that led to his decision to adjudicate the case. Complete absence of co-operation from the appellants led him to proceed with the adjudication of the case. He submitted that if ....
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....of notification 204/92 is demandable from the original licence holder even when he was not the importer. In paras 27.6 to 27.10 the Commissioner at length discussed as to why he considers M/s. Dharam Exports as the deemed importers and why duty not levied should be demanded from him. We have carefully gone through these findings. 17. In an identical case in Jupiter Exports v. CC (Genl.), Mumbai the WRB of the Tribunal examined the very same issue and rejected the contention of the department that the original licence holder, before transfer of the licence, is a deemed importer. The Tribunal discussed the definition of "importer" in the Customs Act and held that an importer is one who holds himself to be the importer. In a case where a transferee of a licence imports goods, he holds himself to be the importer. Under Section 28 of the Customs Act a notice can be served demanding duty not levied, short levied etc. only on the person chargeable with the duty and that person can only be the person who imported the goods. The Tribunal in the abovesaid case rejected the concept of 'deemed importer'. This decision has not been appealed against and has therefore become final. 18....
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....ongly calculated. The Commissioner in para 30 of his order dealt with this issue and gave his findings. The appellants before us have not come out with any fresh pleas to rebut these findings. Hence we reject the plea that duty liability of M/s. Dharam Exports who utilised the advance licences to import duty free goods is correctly arrived at. 21. The next issue pertains to penalty imposed on the karta of M/s. Dharam Exports, Shri Suresh Jumani under Section 114(i) of the Customs Act. We are in full agreement with the submissions made by the learned DR. The extent of fraud committed at the time of export of goods under DEEC is gigantic. The full benefit of advance licences obtained by fraud and misdeclaration is reaped by Suresh Jumani. Under Section 114 of the Customs Act, penalty is imposable on any person who by his acts of omission renders the goods liable to confiscation. Under sub-section (1) of that Section penalty could extend to three times the value of the export goods in case of prohibited goods. The goods in this case where the content of PFY contained in the export goods is misdeclared amounts to misdeclaration of the goods in the context of the DEEC scheme un....