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TAXAP/201/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 201 of 2011
=========================================
COMMISSIONER
OF CUSTOMS - Appellant(s)
Versus
BRIJESH
AGARWAL - Opponent(s)
=========================================
Appearance
:
MS AMEE
YAJNIK for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MS. JUSTICE HARSHA DEVANI
and
HONOURABLE
MR. JUSTICE H.B.ANTANI
Date
: 03/02/2011
ORAL
ORDER
(Per :
HONOURABLE MS. JUSTICE HARSHA DEVANI)
1. In
this appeal under section 130 of the Customs Act, 1962 (the Act), the
Commissioner of Customs, Kandla has challenged common order dated
24th March, 2006 made by the Customs, Excise and Service
Tax Appellate Tribunal (the Tribunal) proposing the following
questions:-
Whether
the Advance Licence obtained under DEEC Scheme and against which
fulfillment of Export obligation was on the basis of
misstatements/misdeclaration by submitting forged/fake export
documents before the DGFT is to be treated as a valid and legal
document?
Whether
the import made on the authority of Advance licence
obtained/transferred on the basis of forged/fake/manipulated export
documents are lawful imports and exempted from payment of duty under
Notification No.204/92-Cus dated 19.05.1992?
Whether
the importer as defined in Section 2(26) of the Customs Act, 1962
includes the licence holder for the purpose of Notification
204/92-Cus dated 19.05.1992 being any person holding himself to be
the importer and who had obtained the Advance licence for duty free
import subject to fulfillment of export obligation but for
transferring the licence to a third party.
The
letter and spirit of the impugned order is contrary to the settled
principles of law. The order would convey a meaning that a
fraudster, after successfully perpetrating the fraud, sells the
fruit of the fraud to a third party and this transfer nets him
double enrichment – that a pecuniary gain which also
simultaneously washes away his crime. This raises a Question of
law, whether a licence obtained by fraud is a non-est from the
beginning or at least from the time the fraud is committed or its
subsequent legal use, makes the licence clean despite the discovery
of fraudulent elements subsequently?
Whether
the confiscation of imported goods under section 111(d) of the
Customs Act, 1962 imported duty free on the basis of licence
obtained under DEEC Scheme and against which fulfillment of export
obligation was shown fraudulently to the DGFT for obtaining
endorsement of transferability of the licence is legal vis-a-vis the
goods having become prohibited goods in terms of Section 2(33) of
the Customs Act, 1962 read with Rule 14 of the Foreign Trade
(Regulation) Rules, 1993.
Whether
the Tribunal is right in law in setting aside duty of Rs.19.27,404/-
demanded under Section 28 of the Customs Act, 1962, interest of
Rs.5,01,125/- charged at the rate of 24% in terms of para
128(A)(iii)(a) of the Export-Import Policy 1992-97 arising due to
the omission and commission on the part of the licence holder for
getting the advance licence transferred on the basis of forged/fake
export documents, and penalty of Rs.25,00,000/- imposed under
Section 112(a) on M/s. Rajnarayan Jwalaprasad as also penalties of
Rs.25,00,000/- on Shri Sailesh Agarwal, Rs.5,00,000/- on Shri
Prakash Agarwal, Rs.5,00,000/- on Shri Brijesh Agarwal,
Rs.2,00,000/- on M/s. Kuppi Uttpadan, Rs.2,00,000/- on Shri
Balkishan Devidayal and Rs.2,00,000/- on M/s. ACT Shipping Ltd.,
imposed under Section 112(a) of the Customs Act, 1962.
2. Heard
the learned senior standing counsel for the appellant.
3. As
noted hereinabove, this appeal arises out of common order dated 24th
March, 2006 passed by the Customs, Excise and Service Tax Appellate
Tribunal. Insofar as the present respondent is concerned, the
adjudicating authority had only levied penalty under section 112(a)
of the Act which has been set aside by the Tribunal.
4. Against
the common order dated 24th March, 2006 passed by the
Tribunal, the appellant herein had preferred Tax Appeal No.1263 of
2006 in respect of M/s. Rajnarayan Jwalaprasad, one of co-noticees.
The said appeal has been decided vide judgment and order dated 27th
January, 2011 wherein the role of each of the noticees including the
respondent herein has been discussed in detail. In the
circumstances, it is not necessary to set out the facts and
contentions in detail.
5. For
the reasons stated in order dated 27th January, 2011
passed in Tax Appeal No.1263 of 2006 in the case of Commissioner of
Customs vs. Rajnarayan Jwalaprasad, it is not possible to state that
the Tribunal has committed any legal infirmity so as to give rise to
a question of law. The appeal is accordingly dismissed.
(
Harsha Devani, J. )
(
H.B. Antani, J. )
hki
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