TMI Blog2017 (12) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... ncelled by the licensing authority and the licences have not been questioned at all by the licensing authority. No duty demand can be made on such import made on the basis of valid and subsisting licence at the relevant time - appeal allowed - decided in favor of appellant. - Customs Appeal No. 51538 of 2017 - Final Order No. 58093/2017 - Dated:- 27-11-2017 - Hon ble Shri S.K. Mohanty, Member (Judicial) And Hon ble Shri B. Ravichandran, Member (Technical) Ms. Asmita A. Nayak and Shri Ranjit, Advocates for the Appellant Shri Govind Dixit, Authorized Representative (DR) for the Respondent ORDER Per. B. Ravichandran The appeal is against order dated 22/05/2017 of Commissioner of Customs, ICD, Patparganj, Delhi. The appellants have imported goods against FPS licence under the relevant customs notification. The goods were assessed as they have satisfied the conditions of the notification at the time of importation. Subsequently based on certain intelligence received by the officers, enquiries were conducted. The enquiry revealed that the licence has been obtained by forging Telegraphic Release Advice (TRA) issued by customs authorities. The signature and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the sides and perused the appeal record. The facts of the case that the appellants obtained a bonafide valid licence issued by the Competent Authority is not in dispute. Subsequent investigations revealed that the licence was obtained by M/s Krishnav Enterprises by submitting manipulated/ forged document. Such action on the part of the applicant for licensee was held against the present importer/appellant. The Revenue seeks to recover the duty forgone from the appellant on the ground that the licence was obtained by fraudulent means and no benefit can accrue on such licence. In this connection, we note that similar disputes came before the Tribunal/High Courts and Hon ble Apex court in various cases. We refer to the following decisions :- (a) Deep Exports vs. CC, New Delhi 2016 (338) E.L.T. 742 (Tri. Del.) ; (b) Indo Exim vs. Union of India 2004 (165) E.L.T. 506 (Del.) ; (c) Pee Jay International vs. CC 2016 (340) E.L.T. 625 (P H) ; (d) Leader Valves Ltd. vs. CC, Jalandhar 2006 (193) E.L.T. 459 (Tri. Del.) ; (e) Taparia Overseas (P) Ltd. vs. Union of India 2003 (161) E.L.T. 47 (Bom.) ; and (f) East India Commercial Co. Ltd., Cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these REP licences by the competent authorities. We have perused the said decision. The Hon ble High Court did not accept the contention that when the licences were cancelled subsequently the benefit cannot be withdrawn which was availed earlier. The High Court relied on their decision in Munjal Showa Ltd. v. CC CE (Delhi-IV), Faridabad - 2009 (246) E.L.T. 18 (P H). We find that these decisions were dealing with forged DEPB scripts. As already noted in the present case we are not dealing with forged licences. The licences have been issued by Competent Authority and were valid till they were cancelled by the competent authority. They were not forged licences. Various case laws examined indicate that the consequences of bona fide buyer using a forged licence or bona fide buyer using a genuine licence but obtained on submission of fabricated or forged documents by the transferors vary. 14. Tribunal in CC v. Patiala Castings Pvt. Ltd. - 2012 (283) E.L.T. 269 examined this issue and held that in the absence of evidence that the transferee have not acted bona fide or was aware of the fraud committed by the original holder of licence, duty cannot be recovered from them. 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that licence obtained by misrepresentation makes the licence non est, with the result that the goods should be deemed to have been imported without licence in contravention of the order issued under Section 3 of the Act so as to bring the case within Clause. (8) of Section 167 of the Sea Customs Act. Assuming that the principles of law of contract apply to the issue of a licence under the Act, a licence obtained by fraud is only voidable : it is good till avoided in the manner prescribed by law. On May 1, 1948, the Central Government issued an order in exercise of the power conferred on it by Section 3 of the Act to provide for licences obtained by misrepresentation, among others, and it reads : The authorities mentioned in the Schedule hereto annexed may under one or other of the following circumstances cancel licences issued by any officer authorised to do so under clauses (viii) to (xiv) of the notification of the Government of India in the late Department of Commerce, No. 23-ITC/43, dated July1, 1943, or take such action as is considered necessary to ensure that the same is made ineffective, namely :- (i) When it is found subsequent to the issue of a licence that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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