FRIENDS TRADING COMPANY Vs. UNION OF INDIA (UOI)

JUDGEMENT

(1.) THIS appeal has been filed by the Assessee under Section 130 of the Customs Act, 1962 (for short, "the Act") against the order dated 8 -10 -2010 in Customs Appeal No. 576/2006 [2011 (267) E.L.T. 57 (Tri. - Del.)] passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench at New Delhi claiming following substantial questions of law:

(2.) THE Appellant imported goods and filed Bill of Entry dated 24 -11 -2000. It availed exemption from payment of Customs Duty under notification dated 7 -4 -1997 under Section 25 of the Customs Act, 1962 against DEPB Scrip dated 14 -11 -2000. Finding that the said Scrip was procured fraudulently by the predecessor of the Appellant, Scrip obtained by the Appellant was held to be void ab initio. Accordingly, demand of duty was raised against the Appellant vide Order -in -Original dated 4 -10 -2005. The said order was affirmed in appeal and has been further affirmed on second appeal by the Tribunal. The Tribunal rejected the contention that on the date of cancellation of DEPB Scrip i.e. 2 -1 -2003, the Appellant having already taken the benefit, the same could not be withdrawn. Further contention that limitation for taking action under Section 28 of the Act had expired and the extended limitation under the proviso could not be invoked in absence of misstatement or suppression being attributed to the Appellant was also rejected. The Tribunal followed the judgment of this Court in the case of the Assessee itself in respect of different DEPB Scrips in Friends Trading Co. and Anr. v. Union of India : 2010 (254) E.L.T. 652, which in turn refers to earlier judgment of this Court dated 1 -9 -2007 in CUSAP No. 27 of 2008 Munjal Showa Limited v. Commissioner of Customs and Central Excise (Delhi (IV), Faridabad, 2009 (246) E.L.T. 18 (P & H)

(3.) WITH reference to proposed questions of law A to E, it was submitted that benefit taken on the basis of fabricated document, which is cancelled subsequently, could not be withdrawn since benefit was taken prior to the date of such cancellation. For this proposition, reliance has been placed on following judgments of the Hon'ble Supreme Court: