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2017 (9) TMI 1137 - CESTAT NEW DELHIBenefit of N/N. 39/96-Cus dated 23.07.1996 - duty paying invoices - The benefit was found to be claimed by submitting forged customs duty exemption certificates purpotedly issued by the GM, OEF, Kanpur - Held that: - the appellant M/s. Anurag Trading Co. have imported goods covered by the five BOEs without payment of duty fraudulently claiming the benefit of notification no. 39/1996 on the basis of CDECs which have not been issued by the OEF Kanpur. The claim of the appellant that such CDECs were furnished to them by various officials of OEF have been disproved by the investigation carried out by Revenue. In fact, the investigation carried out by Revenue has brought out the fact that OEF Kanpur has not issued any CDECs authorizing duty free import. In view of the above discussion, we are of the view that the customs duty demands raised in show cause notice dated 08.07.2011 which have been upheld by the adjudicating authority needs to be sustained along with penalties imposed on M/s. Anurag Trading Co. along with interest under section 28 AB and section 28 AA of the customs act 1962. Demands raised under section 28B in respect of 39 BOE filed during the period August 1996 to January 2004 were issued vide the relevant show cause notice on 05.03.2013 - It has been argued that even though no time limit has been prescribed in the section 28B of the Customs Act it is settled position of law that the time limit applicable for demand of customs duty under section 28 ibid is also applicable to the recovery of amount under section 28B - Held that: - By considering time limit of five years specified under section 28, we find that the entire demand raised under section 28B in show cause notice dated 05.03.2013 becomes hit by time bar. Consequently, entire demand confirmed by the adjudicating authority with reference to show cause notice dated 06.03.2013 are hit by time bar and hence is to be set aside. Consequently, there will also be no justification for imposition of any penalties. The levy on penalty in terms of show cause notice dated 08.07.2011 has been challenged by the CHA on the ground that they had filed the documents before the Customs authorities for clearance of goods on behalf of the importer M/s. Anurag Trading Co. only on the basis of documents given to them by the importer - there is nothing on record to show that CHA, M/s. Trinetra Impex Pvt. Ltd. had any role to play in forging of the certificates or in mis-leading the customs authorities. Consequently, we are of the view that imposition of penalty on Shri Kailash Gupta, the Director of M/s. Trinetra Impex Pvt. Ltd. is without justification and is required to be set aside. Appeal allowed - decided partly in favor of appellants.
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