TMI Blog2008 (4) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... These two appeals arising from the same adjudication order but different orders-in-appeal and involving the same dispute were heard together and are disposed of by this common order. 2. The appellant in Customs Appeal No. 629 of 2006, M/s. ATM International, is a partnership firm. The appellant in Customs Appeal No. 274 of 2007, Ashok Kumar, is one of its partners. 3. The case of the Revenue is that M/s. ATM International was engaged in fraudulent availment of credit in the export of goods under DEPB scheme. Investigation which followed intelligence reports to this effect revealed that it had obtained DEPB scrips from the Joint Director General of Foreign Trade, Ludhiana on the strength of forged Bank Realization Certificates (BRC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders dated 28-8-2006 and 29-12-2006 respectively. They have further come in appeal to this Tribunal. 5. Shri Bipin Garg appearing for the appellants submitted that there is no restriction on sale of DEPB scrips in the market The appellants sold relevant DEPB scrips bona fide for consideration and learned Commissioner committed error in imposing penalty on them, particularly, when penalties were not imposed on the buyer i.e. M/s. Pee Jay International. Counsel submitted that in any view, without cancelling the DEPB licence by the concerned authority no penal consequential action could be taken against the appellants. Cancellation, if any, can have only prospective effect and will not affect past transaction. Counsel also submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and orders. It may, however, be clarified here, as stated by the Counsel, that the present proceeding relates only to three (out of ten) shipping bills viz. 004410, 004739, 004687 corresponding to DEPBs viz. 3010002171 and 3010002059, and Bills of Entry Nos. 000289 dated 17-2-2000 and 00977 dated 3-6-2000 under which acrylic tow valued at Rs. 13,05,760/-. and Australian greasy wool valued at Rs. 1,00,267/- (totalling Rs. 14,06,027/-) were imported. The DEPB licence enables the party to import goods without paying duty. In the instant case, the concerned importer made duty free clearances by mis-utilizing the DEPB scrips transferred by the appellant resulting in evasion of customs duty to the tune of Rs. 4,73,560/-. 8. The investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by the Supreme Court vide 2005 (187) E.L.T. A31 (S.C.). 10. The question as to whether penalty can be imposed on the procurer of the DEPB licence/scrip where the same is not imposed on the transferee has been answered in the negative in the Punjab Haryana High Court in Commissioner of Customs, Amritsar v. Parker Industries - 2007 (207) E.L.T. 658 (P H) in these words :- "10……Merely because penalty has not been imposed on the transferee on that ground, it is no ground to treat the respondent at par with the said transferee. The original allottee has to be accountable under the law for committing fraud and also for its consequences. The order of the Tribunal, amounts to treating innocent and guilty at par. Guilt of the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed only on the importer or any person who abets the importer." 11. ….The submission that the show cause notice did not specify the clause(s) of Section 111 of the Customs Act and, therefore, there was violation of principles of natural justice has also been rejected by the Punjab and Haryana High Court in the own case of the appellant in these words :- "11…….. Such an admission supported by other evidence cannot be ignored on mere technical ground that show cause notice did not specifically mentioned clauses (a) or (b) of Section 112 of the Act, especially when no prejudice is shown to have suffered by the assessee-respondents. We feel unable to agree with the view taken by the Tribunal that the department in show cause notice is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, thus, liable to be set aside." 12. It was vehemently argued that unless and until the DEPB licence/scrip are cancelled by the appropriate authority, no penal action can be taken against the appellants. Attention was drawn to the order of the Joint Director General of Foreign Trade dated 21-12-2001 and it was submitted that the DEPBs cancelled by the said order were other than those involved in the instant case and no order has been passed cancelling the DEPBs in question. It is not possible to accept the submission in view of the definite finding recorded by the Punjab Haryana High Court in para 10 of the judgment in the own case of the appellant (supra) to the effect that the DEPB scrip obtained by Ashok Kumar on the basis of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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