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2008 (9) TMI 391 - HC - CustomsDEPB fraud -Demand - Limitation - Suppression of facts - Whether extended period of five years is available for the notice dated 3-10-2006 issued under Section 28(1) of the Customs Act, 1962 (hereinafter referred to as the Act) when the ingredients of "Fraud" and "with intent to evade payment of duty" are absent in the said Section? Held that:- It is settled principle of common law that a purchaser steps into the shoes of the seller and does not acquire better title than the seller. This principle has also been recognized under Section 27 of the Sales of Goods Act, 1932.The charge of duty is on the goods under Section 12 of the Act unless a case of exemption is made out, irrespective of intention of any person.Even though the word 'fraud' and "with intent to evade payment of duty" are absent in Section 28(1) of the Act, willful suppression or misstatement do find mention in proviso to Section 28 of the Act, which is clearly attracted to the present case. No substantial questions of law arises For the purpose of duty, the Tribunal has clearly held that the documents being forged, the appellant could not be allowed to take advantage of exemption. The Tribunal noticed that the firm with whom the appellant entered into the transaction was not traceable. The appellant itself had come to the conclusion that the documents were forged. In these circumstances, if further opportunity has been given to the appellant on its own asking and for its own benefit, we do not find any error in the course adopted by the Tribunal so as to give rise to substantial question of law sought to be raised. Whether interest under Section 28AB of the act is leviable in absence of determination of short levy under Section 28 of the Act does not, thus, arise on facts as the short levy has clearly been determined. Appeal dismissed.
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