TMI Blog2019 (5) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... price of imported goods on Bill of Entry and that computed on the basis of quantity and value mentioned in the license. The real issue is vis a vis the amendment to the said license to resolve the mismatch. Appeal allowed - decided in favor of appellant. - Appeal No. C/973, 974/2012 - A/85781-85782/2019 - Dated:- 23-1-2019 - Dr. D.M. Misra, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri D.H. Nadkarni, Advocate for the Appellant Ms. Trupti Chavan, Authorised Representative for the Respondent ORDER PER: SANJIV SRIVASTAVA These appeals are directed against order in appeal Nos 762 769/MCH/AC/Gr. VIIIB/2012 dated 11.09.20102 of the Commissioner Customs (Appeal) Mumbai. By the said orders Commissioner (Appeal) has upheld the orders of Assistant Commissioner Customs Gr. VII B/ NCH/ Mumbai holding as follows: Order No S/10-414/ACAO/GW/AC/Gr. VII B dated 06.05.2010 I hereby finalize the assessment at the declared value denying benefit of Notification No 203/9-Cu dated 19.05.1992. 1. In view of the above, I conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt directed the department to release the consignment forthwith subject to the importer furnishing Bank Guarantee and bond. Subsequently High Court directed the department to issue Show Cause Notice to the appellants 2.4 Accordingly show cause notices were issued to the appellants denying the benefit of exemption under Notification No 203/92-Cus for the quantity in excess of that specified in the license and demanding the duty on the declared value in respect of that specified quantity. 2.5 The show cause notices were adjudicated by the Assistant Commissioner as per the orders referred in para 1, supra. 2.6 Aggrieved appellants filed the appeal before Commissioner (Appeals) which were dismissed. Aggrieved appellant filed these appeals before the tribunal. 3.1 In their appeal appellants have challenged the order of Commissioner (Appeal) stating that- a. Custom Authorities are not competent to question the decision of DGFT. The license was issued by DGFT to the transferor. The transferor has after completing the export obligations transferred the license to them on a valid consideration. Joint DGFT has cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... va Chemicals Ltd [2005 (179) ELT 173 (T), Kobian ECS India P Ltd [2003 (157) ELT 662 (T)] and Tata Iron and Steel Company [2004 (177) ELT 1004 (T)] it has been held that Customs Authority had no jurisdiction to amend the value mentioned in the license nor to question the as to whether the license was obtained by misrepresentation or otherwise. iv. The value of the goods imported against the Advance License is within the values specified in the said license. Hence Custom Authorities have gone beyond their jurisdiction, by demanding the duty in respect of the goods in excess of quantity mentioned in the license. 4.3 Arguing for the revenue learned Authorized Representative reiterated the findings of the Assistant Commissioner and Commissioner (Appeals). She submitted relying of the order of Apex Court in case Aafloat Textiles that at the time of procuring the license appellants should have determined what their entitlement to import was. It was for them to satisfy themselves with regards the value mentioned in the License vis a vis the quantity of goods. Since the quantum of goods in terms of quantity imported far exceeds the quantity mentioned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns apply only for sensitive items), the unit price declared for obtaining license can be determined from the DEEC Book. In all such cases where the variation between the price declared to the Licensing authorities and the price declared at the time of actual import is above 20%, the importer should be asked to substantiate such valuation and justify that the CIF price declared in the application before the Licensing authority were the then prevailing international prices . In case importer is not able to justify the correctness of prices declared before the Licensing authorities, the matter should be referred to the concerned Licensing authority for corrective action being taken at their end. Director General, Foreign Trade has also been requested to issue suitable instructions in this regard. 5.4 From the perusal of the said circular following is evident:- i. On the VABAL, issued by the Licensing Authority, both quantity and value of imports permitted are mentioned. However the quantity restrictions mentioned in the license is applicable only in case of sensitive items and not in respect of all other items imported against the said license. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps in that behalf. 10.Therefore, following the ratio of the various decisions relied upon by the appellants, we find that the Commissioner of Customs has no jurisdiction to question Value Based Advance License whether such license was obtained by mis-representation or otherwise as has been held by the Supreme Court in the above cited cases. 11.We also find that the correspondence between the Commissioner of Customs and JDGFT, Calcutta was neither disclosed to the appellants nor they were given any opportunity to present their case before the JDGFT. We also find that no proceedings for amendment of the license were initiated by the JDGFT, Calcutta. The appellants have imported LAM Coke within the value limit of VABAL. There is no charge that they had under-valued LAM Coke at the time of importation. They had also completed their export obligation. Therefore, there is no violation of the provisions of Customs Act. Customs authorities cannot go into the domain of licensing authority for taking action by modifying the value limit given in VABAL. In the circumstances, we do not find any merit in the order of the Commissioner and the same is set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that arrived on the basis of quantity and value mentioned in Value Based Advance License to refer the matter to licensing authority and seek corrections. In absence of any correction/ amendments in the license, the value of imported goods sought to be exempted by the said license cannot be suo motto altered by the Custom Authorities. In our view order of Commissioner (Appeal) and adjudicating authority is not only contrary to the decisions referred above but also contrary to circular No 23/96-Cus issue by CBEC and which has been used as basis for raising the demand. 5.8 In case Aafloat Textile (I) Pvt Ltd [2003 (235) ELT 587 (SC)] relied upon by the Commissioner (Appeal), Hon ble Supreme Court has held as follows: 19.It was for the buyer to establish that he had no knowledge about the genuineness or otherwise of the SIL in question. 20.The maxim caveat emptor is clearly applicable to a case of this nature. As per Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn. 2005 at page 721: Caveat emptor means Let the purchaser beware. It is one of the settled maxims, applying to a purchaser who is bound by actual as well as constructiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the genuineness of the license within his special knowledge. He has to establish that he made enquiry and took requisite precautions to find out about the genuineness of the SIL which he was purchasing. If he has not done that consequences have to follow. These aspects do not appear to have been considered by the CESTAT in coming to the abrupt conclusion that even if one or all the respondents had knowledge that the SIL was forged or fake that was not sufficient to hold that there was no omission of commission on his part so as to render silver or gold liable for confiscation. 28.As noted above, SILs were not genuine documents and were forged. Since fraud was involved, in the eye of law such documents had no existence. Since the documents have been established to be forged or fake, obviously fraud was involved and that was sufficient to extend the period of limitation. From the above paras referred from the said decision it is quite evident that the case under consideration was in respect of a license that was obtained by fraud. When this license obtained by fraud, was presented by the buyer of said license Supreme Court held as above. In the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
