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2016 (2) TMI 731 - GUJARAT HIGH COURT

2016 (2) TMI 731 - GUJARAT HIGH COURT - 2016 (336) E.L.T. 474 (Guj.) - Extended period of limitation - alleged that DEPB Scrips were obtained by the importer fraudulently - import under fake / fraudulent DEPB licence - Held that:- where the appellants did not have any role in the fraud and no fraud had been practised by said person, the Revenue cannot get the benefit of extended period of limitation when such person is not party to the fraud. - It is apparent that the impugned order passed b .....

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rant interference. - Decided against the revenue. - TAX APPEAL NO.22 of 2016 - Dated:- 11-2-2016 - MS. HARSHA DEVANI AND MR. G.R.UDHWANI, JJ. FOR THE APPELLANT : MS AMEE YAJNIK, ADVOCATE ORAL ORDER (PER : HONOURABLE MS. JUSTICE HARSHA DEVANI) 1. By this appeal under section 130 of the Customs Act, 1962 (hereinafter referred to as the Act ), the Commissioner of Customs, Kandla has called in question the order dated 22nd April, 2015 passed by the Customs, Excise and Service Tax Appellate Tribunal, .....

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ting the fact that fraud was involved in the present case and the DEPB Scrips in question have no existence in the eye of law? (iii) Whether the CESTAT has erred in not considering the decision of Hon ble Calcutta High Court in the case of ICI India Limited Vs Commissioner of Customs (Port), Kolkatta reported in 2005 (184) ELT 339 (Cal), wherein it is held that the credit available on the strength of a valid DEPB only and if the same is forged, it is non-est, therefore there is no valid DEPB? (i .....

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market which were originally issued to M/s. Supreme Castings Limited (the exporter) against their export. The importer imported chemicals through Kandla Port on the basis of the DEPB scrips without payment of duty. In 2004, it was found that the exporter obtained the transferable DEPB scrips fraudulently by ante-dating the Shipping Bill No.2216 dated 30th March, 2000 pertaining to cargo against shipping bill which was received in CFS on 4th April, 2000 when the value applicable cost to grant DEP .....

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alongwith interest and imposed penalty of equal amount of duty on the importer. 3. The importer carried the matter in appeal before the Tribunal which by the impugned order held that the extended period of limitation could not be invoked in the facts of the present case and accordingly held that the demand was barred by limitation and set aside the order passed by the adjudicating authority. 4. Ms. Amee Yajnik, learned senior standing counsel for the appellant submitted that the Tribunal has er .....

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e decision of the Calcutta High Court in the case of ICI India Limited v. Commissioner of Customs (Port), Calcutta, 2005 (184) E.L.T. 339 (Cal) wherein it has been held that credit can be availed only on the strength of a valid DEPB and if the same is forged, it is nonest and, therefore, there is no valid DEPB. It was urged that the Tribunal was not justified in not appreciating the fact that in the matter of import under fake/fraudulent DEPB licence, when the document itself is found to be forg .....

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as the impugned order passed by the Tribunal. 6. As can be seen from the impugned order passed by the Tribunal, the Tribunal has recorded that there is no dispute as regards the fact that the importer purchased DEPB scrips from the open market on 25th August, 2000 and imported chemicals from Kandla Port without payment of duty in September, 2000. During the investigation, it was found that the exporter M/s. Supreme Castings Limited had manipulated the export document to facilitate the extra ben .....

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Calcutta High Court wherein it was held that one may not be held liable for collusion or fraud and exposed to other penalties but would still be liable to pay duty and interest and other statutory consequences which one cannot avoid. The Tribunal, noted that there was no dispute that the importer had availed credit on the basis of the DEPB scrips which were issued by the DGFT authorities. At the time of import of goods, the DEPB scrips were not forged. That subsequently, upon finding that the e .....

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