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2016 (11) TMI 753 - CESTAT MUMBAIDEPB scrip - fraudulent availment of DEPB scrip on the strength of forged shipping bills and BRCs - Held that: - M/s. Sun Chemicals has purchased the DEPB scrips from market. The said DEPB scrips were obtained by submitting forged shipping bills and BRCs to the office of DGFT by Shri R.C. Jain. Appellants have strongly relied on the decision of the Tribunal in the case of Sumit Wool Processors (2015 (10) TMI 329 - CESTAT MUMBAI). On the other hand, revenue has relied on the decision of Dow Agrosciences [2011 (5) TMI 677 - CESTAT, MUMBAI]. We find that in the case of Sumit Wool Processors the facts were that DEPB scrips were obtained by overvaluation of export goods. In the instant case, DEPB scrips have been obtained by submitting forged shipping bills to DGFT. The Tribunal in the case of Sumit Wool Processors has considered the decision of Dow Agrosciences and differentiated primarily on the ground that in the case of Dow Agrosciences the DEPB scrips was obtained as a result of racket of forgery of export documents which is not so in the case of Sumit Wool Processors. In the instant case, we find that the DEPB scrips have been obtained by forging the shipping bill and BRC and therefore, the decision of Sumit Wool Processors can be distinguished on that count. We find that in identical circumstances where DEPB scrips purchased by the importer appellants were obtained by using forged shipping bills/BRCs, the recovery of duty was upheld by the Tribunal in the case of Dow Agrosciences. The decision of the Tribunal in the case of Sumit Wool Processors cannot be applied as the facts in the instant case. However the decision of the Tribunal in the case of V.M. Tex P. Ltd, Dow Agrosciences are in identical situation and therefore, relying on these decisions, the appeal of Sun Chemicals is dismissed. Imposition of penalty on Shri R.C. Jain - Held that: - The role of Shri R.C. Jain is limited to submitting forged BRC/shipping bill before the DGFT and obtaining the DEPB scrips from DGFT. Ld. counsel for Shri R.C. Jain has relied on the decision of the Hon'ble High Court of Gujarat in the case of Shah Alloys [2010 (3) TMI 781 - GUJARAT HIGH COURT] where it was held that - penalty against Shri R.C. Jain cannot be sustained. Appeal allowed - decided in favor of appellant.
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