9911796707
TMI Blog2008 (4) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... ar, 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 (BRCs). The concerned bank, namely Oriental Bank of Commerce, Overseas Branch, Jalandhar had reported that the BRCs were not issued in respect of ten shipping bills, and they were forged by the exporter. The DEPB scrips so obtained were registered with the office of Deputy Commissioner of Customs at CFS (OWPL), Ludhiana. They were later transferred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty 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 the show cause notice was vague as it did not specify the clause(s) of Section 111 of the Customs Act which had allegedly been contravened by the appellants. It was pointed out that in the own cases of the appellants - Customs Appeal Nos. 298 to 316 and 319 of 2006-SM(BR) preferred by the Department, and Customs Appeal No. C/579/06-NB(S) of 2006 preferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in course of which statements of appellant Ashok Kumar alias Lucky and other partners were recorded revealed that they had obtained DEPB scrips on the strength of substituted documents i.e. shipping bills and forged Bank Realization Certificates and subsequently transferred them to the importer i.e. M/s. Pee Jay International which imported the goods free from d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 respondents stands established and consequences thereof have to follow. The respondent has, thus, been held liable for illegal import as a result of wrongful act of the respondent. Judgments relied upon do not support the case of the respondent and are only in support of an innocent transferee, who may not be aware of fraud, which principle cannot be extended to the respondent aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission 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 issued to the respondents, was required to specify whether respondents were proceeded against under clause (a) or (b) of Section 112 of the Act. The principles of natural justice are not mere formalities required to be performed by the authorities. After issuance of show cause notice a detailed reply was filed and then opportunity of hearing was also afforded to the respondents. It ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fake Bank Certificate of Export and Realization was cancelled ab initio by the licensing authority. It is not possible to ignore the said finding of the High Court in an inter-party proceeding. 13. We also do not find any substance in the contention that the cancellation, if any, is prospective and would not result in the adverse penal consequences retrospectively. A similar contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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