TMI Blog2007 (3) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 and 27-4-2004 respectively passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity 'the Tribunal'). As common question of facts and law have been raised in all these appeals, we decide them by a common order. The revenue has assailed the order passed by the Tribunal on the principal ground that once the Joint Director (General) of Foreign Trade had cancelled the Duty Exemption Pass Book which is commonly known as DEPB Scheme issued to M/s. Parker Industries, 184, Dilbagh Nagar, Jalandhar which order was upheld in appeal by the Additional Director General of Foreign Trade then the assessee-respondent who had purchased the DPEB from M/s. Parker Industries were not entitled to avail any benefit. For the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can avail the same benefits which could have been availed by the original exporter. The Duty Entitlement Pass-Book(s) Scheme reads as under : "…Under this scheme, the exporter is given duty entitlement at notified rates, which enable him to import inputs required for export production duty-free. He can also make use of this credit to import freely importable goods and or such credit can be transferred. The DEPB scrip is transferable scrip and it is regularly traded in the market. (d) That the main features of the DEPB scheme as operated under the Export Import Policy are the following :- (i) Duty exemption under the scheme is available against export of goods. (ii) The exemption is to be availed by debiting credits, which is to be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the DEPB already issued to M/s. Parker Industries on the basis of forged BCER in respect of shipping bill dated 16-1-2002. After recording the finding, the Commissioner Customs, Amritsar passed the order-in-original on 23-7-2004 ( Annexure A/1) holding as under: "However, I find nothing on record to infer that M/s Leader Valves Ltd., S. 3 4 Industrial Area, Jalandhar had purchased the freely transferable DEPB scrip otherwise than in a bona fide manner and utilised the same towards debit/exemption of duty and there is nothing to suggest of his having colluded with the exporter who obtained the DEPB scrips by fraudulent manner. Therefore, I do not hold them liable to penal action under Section 112 of the Customs Act, 1962. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al placed reliance on the categorical finding of the Commissioner further to conclude that once the penal action under Section 112 of the Customs Act could not be initiated against the assessee-respondent, no duty was recoverable from them under Section 28 of the Customs Act. The Tribunal drew support from a judgment of the Bombay High Court in the case of Taparia Overseas (P) Ltd v. Union of India - 2003 (161) E.L.T. 47. The operative part of the order of the Tribunal reads as under : "In the face of these findings ld. Commissioner could not legally order the recovery of the duty under Section 28 of the Customs Act. In this context, the law laid down by the Hon'ble Bombay High Court in the case of Taparia Overseas (P) Ltd. v. Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en Tools International v. Joint Director General of Foreign Trade, Ludhiana - 2006 (199) E.L.T. 213 (P H). (CWP No. 15278 of 2004, decided on 22-11-2005). Learned Counsel has also cited a judgment of Hon'ble the Supreme Court in the case of New India Assurance Co. v. Kamla and others, AIR 2001 SC 419 and argued that once a driving licence has been found to be forged then its mere renewal by a statutory authority does not get it legally sanctified. He has submitted that a fabricated and forged document would continue to be the same and any benefit obtained on that basis must be considered illegal and unlawful. Learned Counsel also placed reliance on a Division Bench judgment of this Court in the case of the Commissioner of Customs v. M/s. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding the judgment of Hon'ble the Supreme Court in the case of Aban Loyd Chiles Offshore Ltd. v. Commissioner of Customs - 2006 (200) E.L.T. 370; East India Commercial v. Collector of Customs - 1983 (13) E.L.T. 1342 (S.C.) = AIR 1962 SC 1893; Collector of Customs, Bombay v. Sneha Sales Corporation, 2000 (121) E.L.T. 577 (S.C.) and Birla Corporation Ltd. v. Commissioner of Central Excise, 2005 (186) E.L.T. 266 (S.C.). 9. After hearing learned Counsel for the parties, we are of the considered view that this appeal is devoid of any merit. The assessee-respondent admittedly is not a party to the fraud. There are categorical finding that they had purchased DEPB from the open market in the bona fide belief of its being genuine. They had pai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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