TMI Blog2017 (5) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... licence to any transferee to avail any Customs duty exemption - In the present case, the Adjudicating Authority had given a finding that the appellant was not involved in the fraudulent activities. Therefore, the imposition of penalty is not warranted. As per the above decision of the Tribunal, demand of duty alongwith interest is liable to be upheld - appeal disposed off - decided partly in favor of appellant. - C/569/2009 - FO/A/75785/2017 - Dated:- 28-4-2017 - Shri P. K. Choudhary, Judicial Member Shri. B. N. Chattopadhyay, Consultant for the Appellant Shri. S. N. Mitra, AC (AR) for the Respondent ORDER Per: Shri P. K. Choudhary By the impugned order the Commissioner of Customs (Port), Kolkata confirmed the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Supra) on an identical situation, confirmed the demand of duty and set aside the penalties. The relevant portion of the said decision is reproduced below :- 9. Appellants who imported the goods against transferable DFIA Licenses have also taken an argument that they have purchased the DFIA Licenses under a bona fide belief that the same were genuine. It is thus their case that they cannot be held as party to the fraud and extended period cannot be made applicable for demanding duty. Transferee appellants have relied upon an order dated 31-8-2015 passed by the co-ordination bench, Mumbai in the case of Incos ABS (India) Ltd. Others v. C.C., Kandla. In this order it has been held by CESTAT, Mumbai that transferees cannot be he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be entitled to the benefit of the DEPB licences/scrips. Relying on the decision in United India Insurance Company v. Lehru, (2003) 3SCC 338, Dr. Pal contends that it is just not possible for the appellant to verify the DEPB licenses/scrips which is otherwise saleable, negotiable and available in the market and which the appellant had purchased bona fide for valuable consideration and utilized it for availing of the credit against its own import, stands in the same footing as a driving licence of the driver of the vehicle as it stood in the said case. Therefore, this is an important question of law that whether in the absence of any proof of collusion or fraud or absence of bona fide on the part of the appellant, the appellant could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant in the issue of the DEPB licences/scrips becomes absolutely immaterial and irrelevant since no credit can be derived from a forged DEPB. The credit is made available on the strength of a valid DEPB. If the DEPB is forged, then the same is non est and therefore, there is no valid DEPB. As such no credit can be derived thereunder. In such circumstances, one may defend his case that one may not be liable for collusion or fraud and exposed to other penalties therefor, but still then one would be liable to pay the duty and interest and for other statutory consequences which one cannot avoid. 9.1 A script obtained from the Licensing authority fraudulently cannot give licence to any transferee to avail any Customs duty exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the appellants are not time barred. 10 ............................................................................ 11. In view of the above observations duty demands and interest have been correctly confirmed by the Adjudicating authority against all the appellants. However, we are of the considered opinion that penalties are not imposable upon the transferee appellants as they have no knowledge of the nature of goods used and exported by the manufacturers/exporters. Accordingly, penalties imposed upon the transferee appellants are set aside. 5. In the present case, the Adjudicating Authority had given a finding that the appellant was not involved in the fraudulent activities. Therefore, the imposition of penal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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