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M/s. Piyanshu Chemicals Pvt. Ltd. Versus Commissioner of Customs (Port) , Kolkata

2017 (5) TMI 861 - CESTAT KOLKATA

Validity of DEPB licence - goods imported by the appellant under the cover of fake DEPB license No. 02602396 obtained fraudulently against forged documents - Demand of duty with interest - Penalty u/s 112 (a) of the CA, 1962 - extended period of limitation - Held that: - the DEPB license was forged and fake. Therefore, the appellant is not entitled to avail any benefit on the forged documents - The Tribunal in the case of Eastern Silk Indus. Ltd. Vs. Commissioiner of Customs (Airport) Kolkata [2 .....

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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 demand of duty of ₹ 6,33,082/- alongwith interest in respect of consignment imported by the appellant under the cover of fake DEPB license No. 02602396 .....

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bmits that the demand is barred by limitation. He relied upon the following case laws :- (i) Eastern Silk Indus. Ltd. Vs. Commissioner of Customs (Airport/Admn.) Kolkata reported in 2016 (336) E.L.T 141 (Tri.-Kol). (ii) Commissioiner of Customs (Imports), Bombay Vs. HICO Enterprises reported in 2008 (228) E.L.T 161 (S.C). 4 I find from the Adjudication order that the Adjudicating Authority has observed that nothing has been specifically brought out in the Show Cause Notice to prove the involveme .....

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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 .....

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d transferee is also responsible to pay duty against such scripts obtained fraudutantly. This conclusion drawn is based on several quoted case laws of Apex Court and High Courts of Kolkata & Punjab & Haryana. The ratio laid down by Calcutta High Court in the case of ICI India Ltd. v. C.C. (Port), Calcutta [2005 (184) E.L.T. 334] is squarely applicable to the facts of the present appeal. This order of the Calcutta High Court has also been affirmed by Apex Court as reported at 2005 (187) E .....

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e appellant, in that event, the appellant 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, st .....

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the market. Anyone can purchase it from the market and avail of the credit out of it. This was so done by the appellant. But ultimately it was found that the said DEPB licence/scrips were forged. These facts are not in dispute as we find from the finding of the learned CEGAT. The only question that has been put forward, on the basis of the finding of the facts without challenging the same, is about the effect of absence of collusion on the part of the appellant, as pointed out earlier, in relat .....

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the liability of the insurer in relation to a valid insurance policy under the Motor Vehicles Act providing for compulsory insurance to secure third party interest. In this case, the document itself having been found to be forged whether there was collusion or fraud on the part 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 th .....

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any Customs duty exemption. Fraud in common parlance means dishonest dealing, deceit or cheating etc. It makes no difference whether fraud is committed by outrightly forging of documents or by willful misdeclaration/misrepresentation. A fraud is a fraud and there are no categories of mild frauds and severe frauds in taxation matters. Further in a recent case of Tata Iron & Steel Co. Ltd. v. C.C., Mumbai [2015 (319) E.L.T. 546 (S.C.)] on the issue of applicability of extended period in such .....

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