Order No. 2798/98-WZB/C-II arising from in Appeal No. C/708/91-Bom.. Case: Suraj Sales Corporation Vs Commissioner of Customs, Mumbai. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)
| Case Number | Order No. 2798/98-WZB/C-II arising from in Appeal No. C/708/91-Bom. |
| Counsel | For Appellant: Shri S. Rustomji and Raj Dharak, Advocate and For Respondents: Shri A. Ashokan, JDR. |
| Judges | Shri Gowri Shankar, Member (T) and G.N. Srinivasan, Member (J) |
| Issue | Customs Act, 1962 - Sections 111(d), 112 |
| Citation | 2002 (149) ELT 1413 (Tri. - Mumbai) |
| Judgement Date | November 30, 1998 |
| Court | CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal) |
Order:
Gowri Shankar, Member (T), (West Zonal Bench At Mumbai)
-
Appellant imported three consignments of polyester filament yarn and claimed their clearance against two REP import licences. These licences had been issued to M/s. Overseas Enterprises, Hyderabad and purported to have been transferred by the licensee to the appellant. While the goods were pending clearance, Custom House received information that these licences had been obtained by Overseas Enterprises on the basis of fabricated documents which showed exports. Enquiries by the Customs at the Overseas Enterprises not showed existence of any firm located their and their further enquiries showed Overseas Enterprises or A.G. Khan purported proprietor of the firm not to be in existence. Subsequently, the licensing authority cancelled the licences on the ground that they were obtained on the basis of fraud, mis-representation of facts, and by producing forged documents when the licencee itself was fictitious. Enquiries by the Customs also indicated that Shyam Bihani, the proprietor of the appellant firm had colluded in obtaining and selling the import licences and making import against such licenses. He was not a bona fide transferee of the licensee. Notice was therefore issued proposing confiscation of the goods and penalty on him and other persons. We are not concerned with others as they were not before us. After subsequent proceedings the Collector passed the impugned order confiscating the goods absolutely having been unauthorisedly imported, and imposing a penalty of Rs. 20.00 lacs under clause (a) of Section 112 on Shyam Binani. Hence this appeal.
-
The contentions of the advocate for the appellant are these. The goods were imported prior to the cancellation of the licences and the cancellation would operate prospective from the date of cancellation. The licence obtained by fraud may be avoidable but cannot be ab initio and the imports made before the licence is cancelled, the action of the appellant as bona fide purchaser of the licences and hence not liable to penalty.
-
The Supreme Court judgment in East India Commercial Co. Ltd. v. Collector of Customs - 1983 (13) ELT 1342 (SC) and the judgment of the Bombay High Court in K. Uttamlal (Exports) Pvt. Ltd. v. Union of India - 1990 (46) ELT 527 and the Tribunal decision in Steel Tube Products v. Collector of Customs - 1989 (44) ELT 97, Sneh Sales Corporation v. Collector of Customs - 1993 (63) ELT 128 following the...
To continue reading
Request your trial