COMMISSIONER OF CUSTOMS, KANDLA Vs. BINANI CEMENTS LTD.

JUDGEMENT

(1.) BEING aggrieved with the order passed by Commissioner (Appeals) vide which he has set aside the demand on the points of limitation, Revenue has preferred the present appeal.

(2.) AFTER hearing both the sides duly represented by Shri M.M. Mathkar, learned JDR and Shri Sudhir Gupta, learned advocate, I find that M/s. Beni Exports were issued transferable DECB licences, which was transferred by them to the respondent herein i.e. M/s. Benani Cement Ltd. on 22 -8 -2000. Duty free imports were made by the said M/s. Benani Cement Ltd. in the year 2000 and the said DEPB script were utilized for discharge of duty liability in respect of goods imported vide bill of entry dated 3 -10 -2000. However, subsequently the proceedings were initiated against M/s. Beni Exports Ltd. alleging procurement of said licences fraudulently and vide Order -in -original dated 24 -10 -01, the said DEPB licences were cancelled ab initio.

(3.) IN view of the above backgrounds, the issue which emerges as to whether the imports which have been already effected by the respondent before the cancellation of licences, would be denied the benefit of duty free importation. Commissioner (Appeals) held on the said point against the respondent by arriving at finding that as the said licences were cancelled ab initio, the effect would be that there was no entry in the passbook and imports made against such passbook was not entitled for exemption under Notification No. 34/97 -Cus. He, however, granted them the benefit on the basis of time -bar by observing that there was no misrepresentation or suppression of fact, as on the date of clearances of the goods, by the importer inasmuch as DEPB passbook was valid at the time of import. He, accordingly, held that the larger period for demanding duty was not invocable by the department.