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2017 (8) TMI 53 - AT - CustomsDEPB benefit - export of 100% polyester fabrics - Revenue entertained a view that these goods which were exported were substantially over valued in order to avail inadmissible benefit under DEPB scheme - Held that: - the legal provision regarding the demand of duty from the person who is the beneficiary of the instrument issued by the authorities under Foreign Trade (Development and Regulation) Act, 1992 has been introduced only w.e.f. 28.05.2012, as Section 28AAA in the Customs Act, 1962. Introduction of such provision in the substantive law itself makes it clear that there is no legal sanction prior to that date to hold the person to whom, the instrument was issued as a person liable to Customs duty. It is necessary for the officer adjudicating the customs duty liability, to identify the importer/ person who is liable to such duty in terms of the provisions of Customs Act, 1962. The present order in so far as it relates to confirmation of Customs duty jointly and severally on more than one person is accordingly, not legally sustainable. The rejection of FOB value originally assessed by the officers and comparing the value of different exporters to determine the FOB value of the main appellant - Held that: - Since we find that the original authority has not properly arrived at, the identity of the person from whom, duty demand can be confirmed and ordered recovery of such duty jointly and severally, we set aside the impugned order and remand the matter back to the original authority to first examine this legal issue to fix the liability, if any, on the identified persons specifically. The cross examination sought for by the appellants have not been accepted by the original authority on the ground that the same is not a fundamental right. We note that it is a well settled legal principle that the cross examination of witnesses whose statements are admitted as evidence has to be considered in terms of section 138B of the Customs Act. The said provisions are identical to the provisions of Section 9D of the Central Excise Act, 1944 - this aspect requires re-examination. Penalties - Held that: - no act or omission on the part of the custodian has been brought out in the impugned warranting penalties either under Customs Act or Regulation of 2009. As such these two appeals by The That Dry Port are allowed. Appeal allowed in part and part matter on remand.
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