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2023 (4) TMI 453 - AT - CustomsLevy of penalty u/s 114AA of the Customs Act, 1962 - fraudulent obtaining DEPB certificates - creation of forged Bank Realisation Certificates against exports and submitted them to DGFT and obtained DEPB licences and sold them - HELD THAT:- It is undisputed that the appellant had sold these DEPB licences to M/s. Whirlpool India and these licences were obtained from DGFT by submitting forged documents. In his statement dated 7.1.2013, the appellant admitted to having sold these DEPB licences but said that he was not aware that they were obtained based on forged Bank Realisation Certificates. He also said that he kept no record of the licences which he sold and received commission in cash. In the subsequent statement dated 10.4.2014, he agreed that he had prepared/created forged Bank Realisation Certificates against exports and submitted them to DGFT and obtained DEPB licences and sold them. Evidently, the appellant has, by his role discussed above, caused fraudulently obtained DEPB certificates to be used in the Bills of Entry filed by the importer which, in our considered view, falls squarely within the scope of Section 114AA - The judgment of the Hon’ble High Court of Gujarat in COMMISSIONER OF CUSTOMS VERSUS SANJAY AGARWAL [2010 (4) TMI 781 - GUJARAT HIGH COURT] relied upon by the appellant was in the context of penalty under section 112 and not under section 114AA. At the time the SCN was issued in that case (on 24.9.2001), section 114AA did not even exist. Section 114AA was introduced with effect from 13.7.2006. Therefore, this case law does not carry the case of the appellant any further. On examination by DRI, it was found that the containers had Red Sanders whose export is prohibited. An SCN was issued and after adjudication, penalty was imposed under Section 114AA on the Customs broker. The Tribunal found that the appellant had filed the Shipping Bills in good faith based on the documents provided to it and in such circumstances, set aside the penalty. In this case, the DEPB certificates obtained based on forged bank realization certificates were sold by the appellant to the importer and thereby caused the importer to make incorrect declarations in the Bills of Entry. Impugned order upheld - Appeal dismissed.
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