COMMISSIONER OF CUSTOMS Vs. SANJAY AGARWAL

JUDGEMENT

(1.) In both these appeals appellant-revenue has challenged common order dated 26.05.2008 passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) proposing the following questions stated to be substantial questions of law:

(2.) The facts stated briefly are that investigation came to be carried out in respect of imports made by one M/s. Abhiman Export against DEPB licences. It was found that DEPB licences No. 0510031451 and 0510033328 dated 5.2.2001 and 8.3.2001 respectively, allegedly issued by Joint Director General of Foreign Trade (DGFT), New Delhi were forged. The said position was confirmed by letter dated 20.7.2001 of the DGFT. M/s. Abhiman Export had sold the forged DEPB licences in the market which were purchased by one M/s. Rajshanti Metals Ltd. M/s. Rajshanti Metals filed various Bills of Entry claiming exemption from customs duties vide Customs Notification No.34/97 dated 7.4.1997. On the basis of the above referred DEPB licences the goods were cleared by granting exemption. During the course of investigation, the statement of the Chief Executive of M/s. Rajshanti Metals Ltd., was recorded wherein it was stated that DEPB licences and related release advance had been collected by their CHA M/s. Prime Forwarders on their behalf from Shri Sanjay Agarwal of Rimu International, the respondent herein.

(3.) Show cause notice dated 24.09.2001 came to be issued against M/s. Rajshanti Metals Ltd. and two others including the respondent herein, which came to be adjudicated vide order dated 7.5.2002 whereby, interalia, penalty of Rs. 7,12,331/- came to be imposed on the respondent herein under Section 112 of the Customs Act, 1962 (the Act). Being aggrieved, the respondent preferred separate appeals before Commissioner (Appeals) in relation to each of the two DEPB licences, which came to be allowed on the ground that the respondent herein was only a co-noticee whereas the appeal of the main party M/s. Rajshanti Metals, Jamnagar, had been allowed by Commissioner (Appeals). Revenue carried the matter in appeal before the Tribunal but failed.