(1.) THIS appeal comes up before us for final disposal, in the light of the decision taken by the Larger Bench in Hico Enterprises v. Commissioner of Customs, Mumbai : 2005 (189) ELT 135 (Tri -LB) on the issues referred to it by the regular Bench which heard the appeal in the first instance. Contextually, we also note that a 'rectification -of -mistake' application filed by the Commissioner against the decision of the Larger Bench was rejected by that Bench and also that the Civil Appeal filed by the Commissioner against the Larger Bench decision on the referred issues was dismissed by the Hon'ble Supreme Court vide Commissioner of Customs v. Hico Enterprises : 2008 (228) ELT 161 (SC).
(2.) THE appellant in this appeal had imported polypropylene and filed a Bill of Entry on 30.03.1994 for its duty -free clearance under Notification No. 203/92 -Cus dated 19.5.92 on the strength of an advance licence, which had earlier been transferred to them by M/s Amar Taran Exports. After investigation, the department found that, in respect of the finished goods exported by the original licensee in discharge of their export obligation under DEEC Scheme, input stage credit had been availed. It was further found that condition No. V of Notification No. 203/92 -Cus had not been complied with and, therefore, the benefit of duty -free clearance of the goods imported by M/s Hico Enterprises (appellant) was not available to them. On this and allied grounds, show -cause notices were issued to both the parties. Against M/s Amar Taran Exports, proposal for confiscation of the export goods under Section 113 of the Customs Act was raised and an allied proposal for imposition of penalty was also made. Against the present appellant, the goods imported by them were proposed to be confiscated under Section 111 of the Act and the party was proposed to be penalised under Section 112 of the Act. The appellant was also asked to pay duty on the imported raw materials on the ground of violation of Condition V of Notification No. 203/92 -Cus. In adjudication of the show -cause notices, the learned Commissioner of Customs demanded duty of Rs. 16,74,702/ - with interest thereon @ 24% p.a. from M/s Amar Taran Exports and M/s Hico Enterprises (appellant), who were held to be "jointly and severally liable" to pay the said duty with interest. The imported goods were held liable to be confiscated under Section 111 (o) of the Act on the ground of non -compliance with Condition V of the notification. Penalties were imposed on both the parties under Section 112(a) of the Act, the penalty on the appellant amounting to Rs. 1.00 lakh. There is no appeal of M/s Amar Taran Exports before us. We have to deal with the appeal of Hico Enterprises only and, that too, in the light of the Larger Bench decision on the referred issues.
(3.) BOTH the above questions were answered in the affirmative, in favour of the appellant. Consequently, the benefit of the aforementioned legal maxim is available to the appellant, being the transferee of the advance licence and they cannot be called upon to fulfill Condition V (a) of Notification No. 203/92 -Cus. The Larger Bench has clearly held that it was for the original licensee M/s Amar Taran Export to satisfy the said condition.