9911796707
TMI Blog2011 (2) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... sustainable in law? 3. All these four appeals are filed by the importers who got the goods cleared on the basis of licences purchased by them through one, Gautam Chaterjee and these licences had ultimately turned out to be forged and fabricated licences purported to be issued in the names of different licence holders. Therefore, the Department initiated the proceedings against Gautam Chaterjee and his other associates including initiation of proceedings of levy of duty with interest and penalty against the appellants. 4. It was admitted by all the appellants that the advance licences against which they got their goods released were bogus. Consequently, appellant Rahuljee and Company paid the liable duty in respect of the goods imported. However, the liable duty was not paid by the other appellant. Vide the order dated 17th March, 2009, the Adjudicating Authority imposed penalty on the appellants and also other perpetrators. 5. The appellants had filed appeals against the order of the Adjudicating Authority before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) (hereinafter referred as Tribunal). The Tribunal dismissed the appeals of the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal by a common order. The grounds of appeal as taken by the appellants are also common and mainly based on the fact that they were all bona fide purchasers of their respective advance licences through Gautam Chaterjee for consideration which was admittedly paid in the name of Uno Enterprises. 10. It is an admitted case of the appellants that the advance licences in pursuance of which they got TRAs through Gautam Chaterjee were all forged and bogus. We have perused the detailed order of the Adjudicating Authority and also the impugned order of the Tribunal. It is a matter of record that, Manikchand Lalchand Tarker alias Raju and Gautam Chaterjee were apprehended by the officers of the DRI at the Customs House on 1st February, 2000. Their statements were recorded on different dates. However, Gautam Chaterjee stated that the licences were given to him by one, Manoj Shah and Bipin Shah, and that all these licences are forged and he was aware about these being bogus and since importers were getting benefited because of releasing of the goods without payment of basic Customs duty and he was also benefited, so he acted as a middle-man. 11. Based on the enquiries as conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of duty, the importers being guilty of deliberate evasion of duty, are also liable for penalty under Section 114(A) of the Customs Act." 12. After considering the submissions of the learned counsel for the appellant and the entire material on record, we do not find any illegality or perversity in the findings recorded by the Adjudicating Authority or by the Tribunal. All these findings which have been recorded are based on the inquiry conducted by the department. We cannot appreciate as to why the appellants chose not to verify from the concerned department as regard to the names and particulars of the licence holders. It was also unbelievable that they would have bona fidely or ignorantly chosen to strike a deal with small-time employee, Gautam Chaterjee, who involved in lakhs of rupees. Their bona fides become doubtful in view of the fact that they knew that the licences were in the names of others, whereas the payments were made by drafts of huge amounts representing purchase prices of the advance licences in the name of Uno Enterprises with whom admittedly they had no dealing of any kind whatsoever. Not only this, the payments by way of drafts, cheques, etc. in the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licences from the website of the department which appeared as valid thereon and also that they had purchased the licences on the market price. In these circumstances, it was held that the purchasers were bona fide. That being so, we do not see that the learned counsel for the appellant Rahuljee and Company and for that matter other three appellants can derive any benefit from these authorities. 14. With regard to the challenge to this order of Tribunal regarding liability to pay duty by other three appellants, we may note that in the given facts and circumstances as discussed above this cannot be disputed that these appellants were liable to pay import duty as per law. 15. We do not find any illegality in the reasoning recorded by the Tribunal in this regard which is as under :- "6.1.1 As regards the duty liability, since there is no dispute about the fact that the advance license against which duty fee imports of copper/brass scrap have been made by these importers, are forged and had never been issued by DGFT, in view of - (a) Hon'ble Madras High Court's judgment in case of East West Exporters v. AC, Customs reported in 1993 (68) E.L.T. 319 (Mad.) (b)&em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that which is the right of another. The buyer according to the maxim has to be cautious, as the risk is his and not that of the seller. 27. Whether the buyer had made any enquiry as to the genuineness of the licence within his special knowledge. He has to establish that he made enquiry and took requisite precautions to find out about the genuineness of the SIL which he was purchasing. If he has not done that, consequences have to follow. These aspects do not appear to have been considered by the CESTAT in coming to the abrupt conclusion that even if one or all the respondents had knowledge that the SIL was forged or fake that was not sufficient to hold that there was no omission of commission on his part so as to render silver or gold liable for confiscation. 28. As noted above, SILs were not genuine documents and were forged. Since fraud was involved, in the eye of law such documents had no existence. Since the documents have been established to be forged or fake, obviously fraud was involved and that was sufficient to extend the period of limitation" 16. In view of the above discussion, we do not find any infirmity or perversity in the findings of the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
