Custom, Excise & Service Tax Tribunal
Cc, Amritsar vs M/S Moon Light Auto Ltd on 20 September, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. IV
SINGLE MEMBER BENCH
Excise Appeal No. C/687/2007-SM
Dated of Hearing: 20.9.2013
Date of pronouncement: 10.12.2013
(Arising out of OIA No. passed by the CCE (Appeals), Chandigarh)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3.
Whether their Lordships wish to see the fair copy of the order?
4.
Whether order is to be circulated to the Department Authorities?
CC, Amritsar Appellant
Vs.
M/s Moon Light Auto Ltd. Respondent
Appearance:
Present for the Appellant: Shri B.B. Sharma, DR Present for the Respondent: Shri Vikrant Kckria, Advocate Coram: Honble Mr. Manmohan Singh, Technical Member FINAL ORDER NO.58531/2013 PER: MANMOHAN SINGH This matter is coming up before this Tribunal for the second time in pursuance to the order of the Hon'ble High Court of Punjab & Haryana dated 29.7.2013.
2. The brief facts of the case are as under:
The brief facts of the appeal relevant for its disposal are as under:
The respondents had purchased DEPB scrips to avail exemption from payment of customs duty on consignment imported by them under Notification No. 34/97-Cus dated 07.4.97. The Revenue has alleged that these DEPB scrips purchased by the appellant have been obtained fraudulently by Megna Impex from DGFT on the strength of forge/substituted shipping bills. The Revenue also alleged that DGFT cancelled these DFPB scripts ab-initio. They have challenged availment of benefit of Notification No. 34/97-Cus. Accordingly, imported goods valued at Rs.14,73,972/- were confiscated under section 111) of the Customs Act, 1962 and a redemption fine of Rs.1.5 lakh was imposed vide Order-in-Original no. 179/ADC/CFS/LDH/06 dated 12.02.2007. Duty utilized at the time of import was also demanded back by the adjudicating authority by confirming the demand of Rs.6,62,202/- under section 28 of the Customs Act, 1962 along with demand of interest.
3. Against the order of Additional Commissioner, the appeal was filed before the Commissioner (Appeals). However, Commissioner (Appeals) vide his Order-in-Appeal No. 92/Cus/Appl/LDH/2007 dated 27.07.2007 after relying upon Honble Punjab Haryana High Court in the case of Commissioner of Customs Vs. Leader Values Ltd as reported in 2007 (218) ELT 349 (P&H) dropped the demand and also held that redemption fine was also not imposable. This judgement of Honble High Court was maintained in Commissioner Vs. leader values Ltd 2008(277) ELT A 29(S.C.)
4. Being aggrieved with the order passed by the Commissioner (Appeals),the Revenue have filed appeal before the Tribunal on the ground that:-
(a) no credit can be derived from a non-est DEPN scripts. They relied upon Honble Calcutta High Courts judgement in the case ICI India Ltd. V. CCE, Calcutta-2005 (184) ELT 339 (Cal.) wherein it was held that no credit can be derived from non-est DEPB scrips.
(b) Reference to the judgement of Honble Punjab & Haryana High Court in the case of Golden Tools International has been made. In para 12 of the judgement, it was held that bank certificate furnished were fabricated document and fraud avoids all judicial acts, ecclesiastical or temporal. It was also observed that a person whose case is based on fabricated document has no right to seek relief in equity. Para 12 of the above judgement is reproduced as under:
12. We are of the view that both the petitions are bereft of any merit. The entire claim of the petitioners was based on falsehood. It is not in dispute that furnishing of bank certificate of exports and realization of export proceeds was a pre-requisite for issue of DEPB. Admitedly, the bank certificates furnished were fabricated documents. The observations of the former Lord Chief Justice of England, Sir Edward Coke, more than three centuries ago, that fraud avoids all judicial acts, ecclesiastical or temporal, noticed by the Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853, are apt for the instant case. The Apex Court has also observed that an act of deliberate deception with the design of securing something by taking unfair advantage of another is a fraud. Fraud is a cheating intended to get an advantage. A person whose case is based on falsehood has no right to seek relief in equity. Recently in Commissioner of Customs v. Essar Oil Ltd. - 2004 (172) E.L.T. 433 (S.C.) = (2004) 11 SCC 364, their Lordships of the Supreme Court have observed that it is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. Therefore, at the outset, we reject the stand of the petitioners that since the goods were in fact, exported, and the proceeds were realized, no contumacious conduct could be attributed to them and perhaps it was a misadventure on the part of their representatives. It does not matter whether the forged certificates were furnished by the petitioner or their representatives. What is material is that representations were made to the Directorate of Foreign Trade either by them or on their behalf; the Joint Director of Foreign Trade acted on these representations and issued the DEPBs. The petitioner were fully aware that remittances had not been received, through the bankers whose certificates had been furnished. It clearly shows the fraudulent motive. Being the ultimate beneficiaries of the DEPBs, they cannot be heard to say that they are innocent.
(c) The Commissioner (Appeals) has not imposed redemption fine on the ground that goods were not available and further not cleared on bond. The Revenue contended that it implied that the Commissioner (Appeals) is agreed to that extent that the goods were otherwise liable to confiscation but redemption fine was not imposable due to the fact that these were not available for confiscation. In this regard, they quoted the Supreme Courts judgement in the case of CC, (Import), Mumbai vs. Jagdish Cancer & Research Centre-2001 (132) ELT 257 (SC) whereunder it was held that once goods are liable for confiscation, duty is even otherwise recoverable under Section 125(2) of the Act, provisions of Section 28(1) of the Act would not get attracted. Para 11 of the judgment has been referred.
(d) The Commissioner (Appeals) has relied upon Honble Punjab & Haryana High Court in the case of Leader Valves. The Revenue stated that they were contemplating appeal against the Order of Honble Punjab & Haryana High Court as mentioned above. (Supreme Court has since confirmed the Order passed by Honble High Court reported as 2008 (227) ELT A-29 (SC)
(e) Ld. DR referred to the decision of Divisional Bench of the Tribunal and judgement of Honble Supreme Court:-
(i) ICI India-2003 (151) ELT 336 (Tri.-Del.)
(ii) Aafloat Textiles (I) Pvt. Ltd.-2009(235)ELT 587 (SC)
(iii) Candid Enterprises 2001 (130) ELT 404 (SC)
(iv) New India Assurance Co.-2001 (4SCC 342
(v) ATM Interconnection-2008(222)ELT 194 (SC)
(vi) Friends Trading Co. Vs. UOI-2011 (267) ELT 33
5. The appellants further contended that the extended period of limitation could be invoked in cases where the DEPB licences have been found to be forged and fake. Such documents are null and void ab initio.
6. On the other hand, the assessee contested that the extended period of limitation is not invokable against the bonafide purchase of DEPB which has been cancelled on subsequent date. They referred to the provisions of section 28 which reads as under:-
Provided that whre any duty has not been levied or has been short-levied or the interest has not been charged or has been part-paid or the duty or interest has been erroneously refunded by reason of collusion or any willful mis-statement or suppression of facts by the importer or the exporter or the agent or the exployee of the importer or the exporter, provisions of this sub-section shal heave effect as if four the words one year and six months, the words five years were substituted.
7. Ld. Advocate has relied upon the judgment of Honble Punjab & Haryana High Court in the case of CC Vs. Leader Valves Ltd.-2007 (218) ELT 349 (P&H) which has been upheld by the Supreme Court reported as 2008 (227) ELT A-29 (SC) wherein it has been held that extended period of limitation of five years would not be available to the department in the case where DEPB scripts have been availed in a bonafide manner availer of DEPB scrips had not colluded with exporter to obtain the scrip in fraudulent manner. He also contended that fake DEPB scrips were validly issue but were cancelled at a later date. He also referred to the judgement of the Tribunal in the case of CCE, Amritsar Vs. Patiala Castings Pvt. Ltd.-2012 (283) ELT 269 (Tri.-del.) wherein the majority of the issues have been considered by division bench of the Tribunal on the point of DEPB scripts. It has been decided that DEPB scrips which were found to be forged were valid at the time of import, no action is required to be taken against the exporter on a later date.
8. The Revenue filed an Appeal against the order of the Commissioner (Appeals) which was decided by the Tribunal vide its final order no. 550/2011-SM(Br.) dated 17.8.2011. The Respondents approached the Honble High Court against the said order and directed this Tribunal to rehear the case vide their order dated 29.7.2003 Honble Punjab & Haryana High Court directed the appeal to be reheard by the tribunal after giving due opportunity to the appellants. It was further directed to have their written submissions also before decision.
9. Case was heard on 20.9.2013 and both sides were asked to submit their written submissions by 23.9.2013/25.9.2013. Interim Order No. 442/2013 dated 23.9.2013 was also issued. After receiving the written submissions, I have proceeded with examination and analysis of case laws quoted by both the sides. It has taken some time to finalise the order due to large number of judgment having periodical changes in interpretations and finally crystallizing the law on fraud.
10. I find that the present Appeal involves the following issues for determination:
(i) Whether the Respondents are liable to pay duty that was saved by them as a result of using the DEPB scrips.
(ii) Whether extended period of limitation was applicable in the facts and circumstances of the present matter.
(iii) Whether the Respondents were liable to pay redemption fine in lieu of confiscation of the goods which were cleared on utilisation of the scrips.
Issue No. 1.
11. Dealing with the issue of demand of duty that was paid by the Respondents by utilising DEPB scrips, I find that the Commissioner (Appeals) has dropped the demand relying upon the judgment of the Hon'ble Punjab & Haryana High Court in the matter of Commissioner of Customs v. Leader Valves Ltd. as reported in 2007 (218) ELT 349 (P&H) which was later maintained in Commissioner v. Leader Valves Ltd. - 2008 (227) ELT A 29 (SC).
12. I find that the issue of demand of duty under identical circumstances had come up before the Hon'ble Punjab & Haryana High Court in the case of Friends Trading Company v. CC, Jalandhar - 2011(267) ELT 33 (P&H) in the context of the decision of this Tribunal in Friends Trading Company v. CC, Jalandhar - 2011(267) ELT 57 (Tri. - Delhi.). The Tribunal observed as under on the question of liability of the transferee to duty and interest:
8. Evidence gathered by Revenue unambiguously proved that the DEPB scrips used by the appellant for discharge of customs duty were fraudulently obtained by the transferor and were transferred to the appellant. The appellant did not make any enquiry from JDGFT to ascertain genuineness of the same. It is established principle of law that fraud and justice are sworn enemies. An assessee acting un-cautiously and without being vigilant has no right to claim innocence when he fails to exercise due care and diligence. Failing to cause enquiry with the issuing authority of DEPB scrips crippled the assessee to claim its bona fide. Findings of the learned Adjudicating Authority do not appear to have been made suspiciously or under surmise but seems to have been based on cogent evidence.
12. When the Assessee acquired DEPB scrips from market without being an original acquirer, as an abundant caution, to avoid evil consequence of fraudulently obtained scrips, could have safeguarded its interest causing enquiry from JDGFT as to genuineness of the scrips. But that was not done. The appellant failed to acquire no title over the scrips but became beneficiary of ill got scrips. Notificational benefit was availed at the cost of public exchequer which is required to be surrendered for the undue gain made. Bona fides was not established by the appellant failing to cause enquiry from JDGFT. When such bona fide is not established the appellant shall not avail the benefit of the ratio laid down by Honble High Court of Punjab & Haryana in the case of CC v. Leader Valves Ltd. - 2007 (218) E.L.T. 349 (P & H) which has been approved by Honble Supreme Court as reported in CC v. Leader Valves Ltd. - 2008 (227) E.L.T. A29 (S.C.).
14. It has been held in ICI India Limited v. C.C (Port), Calcutta - 2005 (184) E.L.T. 339 (Cal.) the DEPB licence/scrip is admittedly a negotiable one and is available in the market. Any one can purchase it from the market and avail of the credit out of it. This was so done by the appellant. But ultimately it was found that the said DEPB licences/scrips were forged. These facts are not in dispute. The document itself having been found to be forged basing on which DEPB scrips were issued whether there was collusion or fraud on the part of the appellant in the issue of the DEPB licences/scrips becomes absolutely immaterial and irrelevant since no credit can be derived from a forged DEPB. The credit is made available on the strength of a valid DEPB. If the DEPB is forged, then the same is non est and therefore, there is no valid DEPB. As such no credit can be derived thereunder. In such circumstances, one may defend his case that one may not be liable for collusion or fraud and exposed to other penalties therefor, but still then one would be liable to pay the duty and interest and for other statutory consequences which one cannot avoid. This decision of Honble Calcutta High Court was affirmed by Apex Court in appeal by ICI India Ltd. as reported in 2005 (187) E.L.T. A31 (S.C.).
13. The Tribunal took into account the ratio of the judgment of the Hon'ble Punjab & Haryana High Court to arrive at the conclusion that the benefit of the High Court judgment in the case of CC v. Leader Valves Ltd. - 2007 (218) ELT 349 (P & H) which has been approved by Honble Supreme Court as reported in CC v. Leader Valves Ltd. - 2008 (227) E.L.T. A29 (S.C.) would not be available in the absence of proof of bona fide on the part of the transferee. This decision of the Tribunal in Friends Trading was affirmed by the Hon'ble Punjab & Haryana High Court as reported in 2011 (267) ELT 33 (P&H).
14. Further, identical issue was also dealt with by the Tribunal in the case of Friends Trading Company v. CC, Amritsar - 2006 (202) E.L.T. 611 (Tri. - Del.) which was affirmed by the Hon'ble Punjab & Haryana High Court as reported in 2010 (254) E.L.T. 652 (P & H) and further maintained by the Hon'ble Supreme Court in Friends Trading Co. v. Union of India - 2010 (258) E.L.T. A72 (S.C.). This Tribunal on the question of availability of DEPB benefit observed as under:
6.In the present case admitted facts are that M/s. Parker Industries o`btained DEPB Scrips by producing forged bank certificate of export and realization in respect of goods exported by them. Inquiry was conducted from the banks which shows that such certificate was not issued by the bank. DEPB Scrips were purchased by the appellants and was used for import without payment of duty. Subsequent to the import of goods DEPB Scrips were cancelled by the DGFT. The question before us is whether duty is demandable when DEPB Scrips were obtained by producing forged documents and subsequently the same cancelled by the competent authority. Reliance of the appellants is only on the Supreme Courts decision in the case of East India Commercial Co. Ltd. (supra) and the other decision of the Honble Supreme Court and High Court where this decision was followed. We find that in East India Commercial Co. Ltd. (supra) case the facts were that the importer made import under import licence on the condition that the goods were not for sale but for captive consumption but subsequently it was found that the goods were sold and not captively consumed. In this situation the Honble Supreme Court held the goods were not liable for confiscation when the goods were imported under a valid licence. The Supreme Court held that the breach of condition was committed subsequent to the importation of goods. Hence goods cannot be confiscated under Section 167(8) of the Sea Customs Act, 1878. In the present case facts are different. In this case goods were imported under DEPB Scrips which were obtained by producing forged certificates. The appellants also relied upon the decision in the case of Taparia Overseas (P) Ltd. wherein the Honble Supreme Court held that in the case where licence was obtained by way of mis-representation and fraud and subsequently cancelled customs duty cannot be demand. We find that mis-representation or fraud is falsification of account to obtain the import licence where DEPB Scrips were obtained by producing forged documents showing export realization which is different from falsification of account therefore, ratio of the decision relied upon by the appellants are not applicable to the facts of the present case.
7.Further, we find that the Honble Supreme Court in the case of New India Insurance Co. (supra) has held as under:-
The observation of the Division Bench of the Punjab and Haryana High Court in National Insurance Co. Ltd. v. Sucha Singh (supra) that renewal of a document which purports to be a driving licence, will robe even a forged document with validity on account of Section 15 of the Act, propounds a very dangerous proposition. If that proposition is allowed to stand as a legal principle, it may, no doubt, thrill counterfeiters the world over as they would be encouraged to manufacture fake documents in a legion. What was originally a forgery would remain null and void for ever and it would not acquire legal validity at any time by whatever process of sanctification subsequently done on it. Forgery is antithesis to legality and law cannot afford to validate a forgery.
7. While affirming the order the decision of the Tribunal the Hon'ble Punjab & Haryana High Court - 2010 (254) E.L.T. 652 (P & H) made the following observations:
3.We examined an identical? issue in our recent order dated 1-9-2007 in CUSAP No. 27 of 2008 (M/s. Munjal Showa Limited v. Commissioner of Customs and Central Excise (Delhi (IV), Faridabad) [2009 (246) E.L.T. 18(P & H)]. After considering the observations of the Honble Supreme Court in East India Commercial Company limited v. Collector - 1983 (13) E.L.T. 1342 (S.C.) = AIR 1962 SC 1893, Collector of Customs, Bombay v. Sneha Sales Corporation - 2000 (121) E.L.T. 577, Sampat Raj Dugar - 1992 (58) E.L.T. 163 and Aban Loyd Chiles Offshore Ltd. and others v. Commissioner of Customs, Maharashtra - 2006 (200) E.L.T. 370 (S.C.) = (2006) 6 SCC 482, by the Bombay High Court in Taparia Overseas (P) Limited v. UOI - 2003 (161) E.L.T. 47 and K. Uttamlal (Exports) Pvt. Limited v. UOI - 1990 (46) E.L.T. 527 and by the Allahabad High Court in Coolade Beverages Limited v. Commissioner of Central Excise, Meerut - 2004 (172) E.L.T. 451 and H. Guru Investment (North India) Pvt. Limited v. CEGAT, New Delhi, 1998 (104) E.L.T. 8 and judgments of this Court in Commissioner of Customs, Amritsar v. Vallabh Design Products - 2007 (219) E.L.T. 73 and Commissioner of Customs v. Leader Valves Ltd. - 2007 (218) E.L.T. 349, it was held as under :-
12. We do not find any applicability of the above judgment to the facts of the present case. In the present case, DEPB Scrips were forged, which has been admitted even by the appellant before the Tribunal. Benefit of a forged document cannot be allowed to be retained. The judgment relied upon does not in any manner lay down that benefit of a forged document could be allowed to be retained. The principle laid down in the judgment relied upon which has been followed in other judgments cannot, thus, apply to the case of the present nature where benefit has been taken on the basis of a forged document.
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19. It is settled principle of common law that a purchaser steps into the shoes of the seller and does not acquire better title than the seller. This principle has also been recognized under Section 27 of the Sales of Goods Act, 1932.
20. The charge of duty is on the goods under Section 12 of the Act unless a case of exemption is made out, irrespective of intention of any person.
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24. For the purpose of duty, the Tribunal has clearly held that the documents being forged, the appellant could not be allowed to take advantage of exemption. The Tribunal noticed that the firm with whom the appellant entered into the transaction was not traceable. The appellant itself had come to the conclusion that the documents were forged. In these circumstances, if further opportunity has been given to the appellant on its own asking and for its own benefit, we do not find any error in the course adopted by the Tribunal so as to give rise to substantial question of law sought to be raised.
4.We also made a reference to? judgments of the Honble Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853 and Commissioner of Customs v. Essar Oil Ltd. - 2004 (172) E.L.T. 433 (S.C.) = (2004) 11 SCC 364 and judgments of this Court in Golden Tools International v. Joint DGFT, Ludhiana - 2006 (199) E.L.T. 213 and The Commissioner of Customs, Commissionerate, The Mall, Amritsar v. M/s. Parker Industries, Jalandhar - 2007 (207) E.L.T. 658.
5.In view of above, we do not? find any ground to interfere with the order upholding demand of duty on goods in respect of which exemption had been availed of on the basis of DEPB Scrips obtained against forged documents."
This judgment was maintained by the Hon'ble Supreme Court as reported in Friends Trading Co. v. Union of India - 2010 (258) E.L.T. A72 (S.C.).
15. I find that in the present matter too, there is no evidence to show that the Respondents had made any inquiries with the DGFT authorities who had issued the scrips so as to prove their bona fide. In these circumstances, following the aforesaid judgments in the case of Friends Trading Company which were rendered at a later point of time and keeping in view the principle approved by the Hon'ble Supreme Court in the process, I hold that the order of the Commissioner (Appeals) is not sustainable and the Appeal of the Revenue has to be allowed so far as recovery of duty is concerned.
Issue No. 216. On the question of applicability of the extended period of limitation in the facts and circumstances of the present case, I would refer to the following observations of the Hon'ble Punjab & Haryana High Court in the case of Friends Trading Co. v. UOI - 2011 (267) E.L.T. 33 (P & H):
8.Learned counsel for the? appellant submitted that even where DEPB scrip is forged and obtained fraudulently, resulting in wrongful availment of benefit of import duty and loss to public revenue, extended period of limitation could not be invoked in absence of finding of suppression or mis-statement by the importer who is successor of holder of such document. Distinction must be made between a document which is non-existent and fraudulent and a document which has not been genuinely obtained by complying with the requisite conditions.
9.We are unable to accept the? submission. Finding recorded by the Tribunal, reproduced above, shows that action of the petitioner was not bona fide. In any case, the proviso is not limited to action of an importer who comes forward to take advantage on the basis of fraudulently obtained or forged DEPB, it also covers action of the predecessor of the importer. Importer who steps into the shoes of seller of forged document does not stand on better footing and cannot be allowed to retain benefit illegally obtained. Taint attaching to the document on the basis of which benefit is taken is not washed off. Fraud or suppression continues if document is not genuine. Any other interpretation will defeat the intendment of the proviso to Section 28 and will enable fraud to be perpetuated without any remedy. Even if case of criminal liability or penalty may stand on different footing, purchaser or successor of fraudulently obtained DEPB stands in the same position as his predecessor. If the extended period of limitation could be invoked against the original holder of fraudulent or forged DEPB, the same could be invoked against successor or purchaser. The judgments relied upon on behalf of the petitioner are distinguishable. The matter is covered by view taken by this Court earlier which has been followed by the Tribunal. Thus, we are unable to hold that any substantial question of law arises.
17. The ratio of the aforesaid judgment is squarely applicable in the present circumstances. I have also perused other judgements quoted by Revenue and find that contents of these judgments elucidate the principles laid down in above judgement Accordingly, I hold that the extended period of limitation has correctly been invoked in the present case.
Issue No. 318. On the question of imposition of redemption fine the Respondents have pleaded that since the goods were neither available physically nor was any Bond executed, there was no ground for imposition of redemption fine. I find force in their contention as law is settled on this account.
19. I also observe that the respondents have relied upon the decision of this Tribunal in the case of Commissioner of Customs, Amritsar v. Patiala Castings Pvt. Ltd. 2012 (283) ELT 269 (Tri. Del.) in which the issue was decided in favour of the Respondents therein primarily on the basis of the decision in the case of Commissioner of Customs v. Leader Valves Ltd. reported in 2007 (218) E.L.T. 349 (P&H) in which it was held that duty could not be demanded from an importer who had made duty free imports against DEPB scrips purchased by him from another person under bona fide belief. I find it relevant here to refer to the decision of this Tribunal in Friends Trading Co v. CC, Jalandhar - 2011 (267) E.L.T. 57 (Tri. - Del.) in which it was discussed at length as to what constituted bona fide belief. This decision was later affirmed by the Honble Punjab and Haryana High Court as reported in 2011 (267) E.L.T. 33 (P & H). The facts of the present case are identical to those involved in the Friends Trading Co. case referred to above. The decision in the Patiala Castings does not counter this and goes on to discuss the concept of void and voidable contract where one contracting party has perpetrated a fraud on the other. I find that while this argument may hold good for enforcement of inter se rights and liabilities between the two contracting parties who have sold and purchased DEPB scrips obtained by fraudulent means, the interest of the Revenue cannot be jeopardised merely for the reason that such a right existed between the parties concerned.
20. I also observe that decisions / judgments in the case of Friends Trading Co. (supra) also took into consideration the judgments that were relied upon in the case on Patiala Castings Co. and am therefore inclined to follow the judgments of the Honble Supreme / Honble Punjab and Haryana High Court which are in the context of identical facts. To support my finding that transferee of a DEPB scrip obtained by fraudulent means was liable to payback the amount of undue benefit, I would also like to refer to the decision of this Tribunal in the case of Dow Agrosciences India Pvt. Ltd. v. CC, Mumbai - 2012 (283) E.L.T. 524 (Tri. - Mumbai) inasmuch as in the present case too no exports, on the basis of which DEPB scrips were issued, had actually taken place and there was no entitlement to DEPB benefit even to the party to which the DEPB scrip was originally issued on the basis of forged documents. The Revenue, therefore, cannot be made to suffer the consequence of a transaction where no exports actually took place and duty entitlement was secured on the basis of forged documents. Accordingly, I hold that the ratio of the decision in the case of Patiala Castings case would not be applicable in the facts and circumstances of the present case in view of the above discussions.
Revenues appeal is partly accepted in above terms.
(Pronounced in the open Court on 10.12.2013) (MANMOHAN SINGH) Member (Technical) K. Gupta 1