TMI Blog2007 (4) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... by challenging the order dated 9-6-2006 passed by the Customs, Excise and Service tax Appellate Tribunal, New Delhi (for brevity, 'The Tribunal'). The revenue has assailed the order passed by the Tribunal on the principal ground that once the Joint Director General of Foreign Trade had cancelled the Duty Exemption Pass Book, which is commonly known as DEPB Scheme, issued to M/s. Parker Industries, 184, Dilbagh Nagar, Jalandhar, which order was upheld in appeal by the Additional Director General of Foreign Trade, then the assessee respondent, who had purchased the DEPB from M/s. Parker Industries, was not entitled to avail any benefit. 2. The Government of India in order to boost export had announced various concessions including exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given duty entitlement at notified rates, which enable him to import inputs required for export production duly-free. He can also make use of this credit to import freely importable goods and or such credit can be transferred. The DEPB scrip is transferable scrip and it is regularly traded in the market. (d) That the main features of the DEPB scheme as operated under the Export Import Policy are the following : (i) Duty exemption under the scheme is available.against export of goods. (ii) The exemption is to be availed by debiting credits, which is to be earned at the specific rate notified by DGFT for the relevant product which is exported. (iii) The DEPB credit is subject to realisation of export p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner Customs, Amritsar, passed an order-in-original on 27-4-2004 (Annexure P/4 ) holding as under : "M/s. Vallabh Design Products have also contested the proposed penal action against them on the ground that they have just purchased the said transferable DEPB Scrip as genuine importer and had made no wilful mis-statement or fraud. I find nothing on record to infer that M/s. Vallabh Design Products, Ludhiana had purchased the freely transferable DEPB scrip otherwise than in a bona fide manner and utilized the same towards debit/exemption of duty and there is nothing to suggest of his having colluded with the exporter who obtained the DEPB scrips by fraudulent manner. Therefore, I do not hold them liable to penal action under Section 112 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the issue involved in this case is squarely covered by the decision of Larger Bench in the case of HICO Enterprises v. CC, Mumbai as reported in 2005 (189) E.L.T. 135 (Tri.-LB) = 2005 (71) RLT 225 (CESTAT-LB). I may read Paragraph 33 : 'Where transfer has been effected without notice to the transferee of alleged fraud, the concept of fraud vitiate everything is not applicable as licence was transferred for value, arising out of importable transaction governed by any law.' 4. Accordingly since the issue is covered by the Larger Bench Division, I do not find any reason to sustain the impugned order. The impugned order is liable to be set-aside and I do so. Appeal allowed, with consequential relief, if any." 6. It is appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that a fabricated and forged document would continue to be the same and any benefit obtained on that basis must be considered illegal and unlawful. Learned Counsel also placed reliance on a Division Bench judgment of this Court in the case of The Commissioner of Customs v. M/s. Parker Industries, Jalandhar (Custom Act Appeal No. 1 of 2006, decided on 7-11-2006) [2007 (207) E.L.T. 658 (P H)]. 8. Mr. Pawan Kumar Pahwa, learned Counsel for the assessee-respondent, has submitted that the DEPB scrip was transferred to the assessee-respondent by M/s. Parker Industries and the benefits by the assessee-respondent were availed on 7-11-1997, which amounted to Rs. 62,672/-. The Joint Director General of Foreign Trade cancelled the DEPB availe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the considered view that this appeal is devoid of any merit. The assessee-respondent admittedly is not a party to the fraud. There are categorical finding that it had purchased DEPB from the open market in the bona fide belief of its being genuine. The assessee-respondent had paid full price and accordingly had availed the benefit. 10. It is also worth noticing that the assessee-respondent was issued a show cause notice dated 10-6-2002 (P-2) before cancelling the DEPB, which was obtained by M/s. Parker Industries, however, we are of the view that notice under Section 28 of the Customs Act could not be issued to the assessee-respondent because a period of six months stipulated by Section 28 of the Customs Act stood already expired and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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