TMI Blog2007 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Customs Excise, and Gold (Control) Appellate Tribunal, Mumbai. ("the "Tribunal" for short). Facts : 2 The facts involved in both the proceedings are common The petitioner is engaged in the business of export of fabrics and allied products 3. The Commissioner of Customs (E.P.) issued a show cause notice alleging gross misuse of DEEC scheme adopting fraudulent means to obtain higher - entitlement of duty free imports of (Polyester Filament Yarn (P.F.Y.) and other raw materials under the DEEC scheme. It was alleged that after expo 38,646.412 kgs of fabrics (containing 31,518 kgs of P.F.Y.) M/s. Jupiter Exports had altered the export permission (E.P. copies) of the shipping bills and enhanced quantity of exported goods (66,996.890 kgs) and consequently showed use of excess quantity of P.F.Y. in exported fabrics (60.295 kgs). 4. The E.P. copy was submitted to D.G.F.T. in order to obtain duty free Advance Licences for the import of P.F.Y. and disperse chemicals. The net excess weight of P.F.Y. shown was 45,221.155 kgs. It was alleged that on the basis of forged and fabricated documents M/s. Jupiter Exports (Petitioner) obtained a higher entitlement of duty free ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chargeable with duty". Such person "chargeable with duty" would be the importer alone in the case of import duty and exporter in the case of export duty. That the definition of the term of "importer" under Section 2(26) covers only the person who causes the import of the goods but to any owner of the person holding himself out to be the importer at any time between their importation in the clearance for home consumption. As the bulk of the imports were made by the bona fide transferees of the licenses obtained and sold by the petitioner, it could not be considered to be the importers as such no duty can be recovered from the original holder of the import licence. It was thus held that petitioner was liable to pay duty only to the extent of goods actually imported by it, quantified in the sum of Rs. 1.38 lakhs approximately, i.e. for the goods actually imported by it. 10. The Customs Department not satisfied with the aforesaid order of the Tribunal invoked jurisdiction of this Court under Section 130(A) of the Customs Act to seek reference for opinion of this Court on following questions of Law : (a) Whether exports made by manipulating and forging the documents and creating f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having validly imported goods, entitled to exemption. He further submits that the concept of deemed import is neither recognized by Customs Act, or Rules framed thereunder nor notifications issued under the Act and Rules. 14. Mr. Shroff further brought to our notice Notification No. 204/92- Cus. dated 19th May, 1992, on which reliance was placed by the Commissioner of Customs; to hold that the original licence holder, namely, M/s. Jupiter Exports could be treated as "deemed importer" in terms of the said notification. We have perused each and every line of the Notification. It does not contain any such provision. We did not find any whisper in it in this behalf. Mr. Rao appearing for Revenue was specifically asked to put his finger on a line or a word of the notification in support of the findings recorded by the Commissioner of Customs. However, he found it difficult. Mr. Rao fairly conceded that the notification does not spelt out such a concept of "deemed importer". 15. Mr. Shroff without prejudice to his aforesaid contentions, alternatively urged that assuming while denying that duty in law be recovered from the original licence holder. There is no dispute that the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner as well as the Tribunal. Hence, petitioner was required to file writ petition to seek implementation of the order of the Tribunal in it's true letter and spirit. 18. He, thus, prayed for rejection of the appeal filed by the Revenue. At the same time, he urged that his writ petition seeking implementation of the order of the Tribunal is liable to be allowed, in the event, application filed by the Revenue is dismissed. Consideration : 19. Having heard the rival parties, no fault can be found with the view taken by the Tribunal. It is now well settled that when partnership is penalised, separate penalties cannot be imposed on the partners. 20. So far as first question is concerned it does not arise since the Commissioner itself did not confiscate any goods that were exported. 21. With regard to the second question, this question also does not arise for determination of this Court as the Commissioner has held that to the extent of actual exports, the respondents must be given the benefit of the license; so far transferees are concerned, their import cannot be touched or considered in this application, since order exonerating them is accepted by the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term "importer" and does not cover a person who has not caused the import, of the goods and who does not hold himself out to be the importer or the owner of the imported goods. As the respondents are not the importer. It cannot be made chargeable to duty as the demand for duty has to be based on law and not on equity or moral considerations. The Tribunal rightly held that it was open to the department to proceed against a person who had obtained a license by fraud or misdeclaration in accordance with law. 24. For the reasons recorded, application is devoid of any substance and liable to be rejected. In the result, application is rejected with no order as to costs. 25. Having dismissed aforesaid application filed by the Revenue, now it has become obligatory on the part of the Commissioner of Customs to implement the order of the Tribunal. Amount to which M/s. Jupiter Exports are entitled was quantified in the sum of Rs. 98,62,000/- which has been deposited in this Court, and invested with the Nationalized Bank. Petitioner, thus, is entitled to get this amount with accrued interest thereon. Hence we allow writ petition and hold that the petitioner is entitled to claim Rs. 98 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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