TMI Blog2011 (2) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Advocate, for the Appellant. Shri Mukesh Anand, Advocate, for the Respondent. [Order per : M.L. Mehta. J. (Oral)]. By this common order, the aforementioned four appeals are being disposed. At the outset, it may be noted that in the case of Rahuljee Company (CUSAA No. 2/2010), the appeal was admitted on 10th November, 2010, but the substantial question of law remained to be framed. The question of law, as framed in the remaining three appeals as noted hereinafter, shall also be the same in the appeal filed by Rahuljee Company. 2. It is this question of law which arises in these appeals : (i) In the facts and circumstances of the case, whether the impugned order dated 30th March, 2010 passed by CESTAT [2010 (255) E.L.T. 572 (Tri.-Del.).] confirming the order in Original of the Adjudicating Authority imposing the penalty upon the appellants is 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 holder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant that the licence had earlier been transferred to Uno Enterprise and therefore at the instance of Mr. Chaterjee, the demand draft representing the commission was made in the name of Uno Enterprise. The additional ground of challenge in the other three appeals is also regarding liability to demand import duty. 8. The learned counsel relied upon the cases of Commissioner, Customs v. Leader Valves Ltd, 2007 (218) E.L.T. 349, Commissioner v. Birla VXL Ltd, 2008 (227) E.L.T. A 29 (S.C.), H. Kumar Gadecha v. C.C, Ahmadabad, 2009 (243) E.L.T. 248 and Afloat Textiles (India) Ltd. v. Union of India, 2004 (170) E.L.T. 138 (Bombay). 9. We have gone through the record including the grounds of the appeals filed by the appellants. We have seen that cases of all the appellants were decided by the Adjudicating Authority and also by the Tribunal 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of the licences - (a) The import licences have been purchased through Shri Gautam Chatterjee, an employee of a CHA. No prudent importer would purchase such high value advance licences through a petty employee of a CHA instead of a regular licence broker; (b) Licence premium was paid by demand draft in favour of M/s. Uno Enterprises, while the licence holder were different persons - like M/s. Super Abrasive Tooling, M/s. Supric Chemicals, M/s. Oriental Containers etc. which should have raised suspicion. (c) The licence premium in these cases is 50% to 75% as against normal premium of around 98% of the duty foregone. The premium was payable only after the clearance of the goods. In view of the above, we hold that not only extended period under proviso to Section 28(1) is available to the Department for recovery 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 Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses both the authorities below had recorded, as a matter of fact, that there was nothing to suggest the purchasers having purchased in any manner other than bona fide. Similarly, the case of Afloat Textiles (India) Ltd. (supra) was also entirely distinguishable and not applicable to the facts of the present case. This case related to fulfilling of certain export obligations under the licence and it was recorded, as a matter of fact, that the raw materials imported by the licence holders were sold before fulfilling the export obligations under the licence and that even the export proceeds had not been realized. That was a case based on its own facts. Likewise, the case of H. Kumar Gadecha (supra) is also entirely distinguishable from the present case inasmuch as in that case the importers had verified about the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly bound to view the land and to enquire after and inspect the title deeds; at his peril if he does not. 25. Upon a sale of goods, the general rule with regard to their nature or quality is caveat emptor, so that in the absence of fraud, the buyer has no remedy against the seller for any defect in the goods not covered by some condition or warranty, expressed or implied. It is beyond all doubt that, by the general rules of law there is no warranty of quality arising from the bare contract of sale of goods, and that where there has been no fraud, a buyer who has not obtained an express warranty, takes all risk to defect in the goods, unless there are circumstances beyond to mere fact of sale from which a warranty may be implied. 26. No one ought in ignorance to buy 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, conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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