Customs, Excise and Gold Tribunal - Mumbai
Jupiter Exports, Gauri Shankar ... vs Commissioner Of Customs (General), ... on 8 November, 2001
Equivalent citations: 2002(145)ELT173(TRI-MUMBAI)
JUDGMENT J.H. Joglekar, Member (T)
1. For disposal of this application, the facts leading thereto, need to be spelt out in brief.
2. M/s. Jupiter Exports fraudulently obtained advance licences and the DEEC books. They falsified export document invoices test reports etc. to inflate the value and varieties of exports. Thereafter they obtained by fraud transferability of the licences from the appropriate authorities. These licences were then sold/transfered to other persons. The transferee buyers imported certain goods without payment of duty. The Commissioner of Customs in adjudication held that M/s. Jupiter Exports were "deemed importers" in terms of Customs Notification No. 204/92. He confirmed the duty upon M/s. Jupiter Exports and imposed penalties upon them and the three partners in the said firm. Against this judgment 4 appeals were filed which were disposed of by the Tribunal vide Final Order No. C-I/347-50/WZB/2001 dt 5.2.2001. Before the Tribunal the misdeeds of M/s. Jupiter Exports were pointed out by the departmental representative. The Tribunal appreciated the sentiment of the Commissioner to the effect that M/s. Jupiter Exports must suffer the consequences on detection of the malpractices. The Tribunal however did not uphold the recovery of duty from M/s. Jupiter Exports. The Tribunal examined the definitions of the phrase 'importer' as also the provisions of Section 28 of the Act, and held that the duty could not be recovered from M/s. Jupiter Exports except for one import directly made by them. The penalty imposed upon them was reduced proportionately.
3. The appellants then approached the Customs for refund of the appropriate amount and on not getting any response filed miscellaneous application No. C/MA(Ors)604/2001-Mum. This application came up for hearing on 18.9.2001 when the Tribunal directed the Departmental Representative to obtain a report from the concerned authorities on the action taken in pursuance of the order directing consequential relief. The submission was filed by the Commissioner of Customs [Export Promotion] on 16.10.2001. In the submission it is claimed that persuant to the advice from the Ministry of Law, an application has been filed in the High Court of appropriate jurisdiction under Section 130(A) of the Customs Act, 1962. It is submitted that the directions of the Tribunal dt. 5.2.2001 should be stayed pending the disposal of the application.
4. We observe that the finding of the Tribunal in the present proceedings that duty under Section 28(1) could not be demanded from the original holders of the licence but could be demanded only from the persons who actually imported the goods; has been laid down in a number of earlier judgments including In the case of Elecon Engineering Co. Ltd. v. Commissioner of Cus. [1999 (111) ELT 509 (Tribunal)] as also in the case of Geekay Exim (India) Ltd. v. Commissioner of Customs (AP), Mumbai. [2001 (46) RLT 709 (CEGAT-Mum.)].
5. We also note a judgment of the Calcutta High Court in the case of Sancheti Food Products Ltd. v. Union of India [1993 (67) ELT 248 (Cal.)] in which it was held that the fact that a reference application under Section 130(3) of the Act, (as it then was) was made did not act as a stay of operation of the Tribunal's order.
6. Shri Pundir Joint, Chief Departmental Representative stating this stand of the Revenue acknowledged bot these sets of judgments. He submitted that in the Commissioner's order certain mistakes had been committed. He submitted that before the Tribunal also certain facts were not presented properly. He submits that the result was that undue benefit was being extended to M/s. Jupiter Exports whose fraudulent deeds are established and are not contested.
7. We find that the subject appeal was filed by the partners and the firm of M/s. Jupiter Exports. The revenue on finding gross errors in the Commissioner's order also did not file an appeal before the Tribunal. As regards the alleged errors in the cited order of the Tribunal, we observe that the Revenue were free to file an application for rectification of any mistake with the revenue had not done. Shri Pundir wanted some time for the revenue to file an ROM but we are not prepared to adjourn this proceeding pending such filing.
8. We have seen the text of the advice given by the Ministry of Law to the referring Commissioner in which the order of the Tribunal has been termed as "absurd". We are pained at this irreverent and irresponsible remark. The Law on this subject is so well established that it should be known even to the Ministry of Law. We do not wish to express any further views on these unfortunate ulterances of that Ministry.
9. We would however refer to another portion in the said advice. It has been brought out that inspite of the detection of the frauds way back in 1995. The Customs authorities held their hands. They did not arrest the wrong doers and possibly did not put them under detention. It is indeed surprising after 7 years, the revenue is making a great show of indignation and injured innocence; and is filing an application for not returning the money which was collected without any authority of law.
10. The entire manner in which the Commissioner proceeded in stating his position has left us with a deep sense of anguish. We do not see any reason to accede to his request, but would, in terms of the authority vested in us under Rule 41 of the CEGAT (Procedure) Rules, direct the said Commissioner to refund the amounts due to the appellants.
(Pronounced in Court)