Adarsh Kumar Goel, J. - (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: A. Whether a concurrent Bench of the CESTAT (the 2nd Respondent) could take a differing view on an issue which was same as involved in the other Judgments of the concurrent Bench? B. Whether an order of the full Bench of the Tribunal was binding on a two member Bench of the Tribunal wherein the law involved was the same and whether a two member Bench could have ignored the binding judgments of the Full/Larger Bench of the Tribunal? C. Whether the 2nd Respondent ought to have followed the law as laid down by the Hon'ble Supreme Court and the various High Courts in the various cases having identical issues involved, as cited therein? D. Whether a License obtained on the basis of fabricated documents was merely voidable and was good till avoided as held in the case of East India Commercial Co. Ltd. v. Collector of Customs : AIR 1962 SC 1893 : 1983 (13) E.L.T. 1342 (S.C.)? E. Whether the import of goods under the License or the availment of credit under the DEPB Scrip by the Transferee of the License/DEPB Scrip prior to cancellation of such License/DEPB Scrip by the appropriate authority, could be held to be illegal or improper? F. Whether the provisions of proviso (2) Sub -section (1) of Section 28 of the Customs Act, 1962, could at all be invoked when there was no collusion or willful misstatement or suppression of facts by the importer and consequently whether the demand for duty could be made against such importer in respect of a credit, availed of by him, under a DEPB Scrip which was valid and validly enforced at the time when the goods were imported? G. Whether an order of cancellation of a DEPB Scrip could operate retrospectively so as to render the imports effected earlier than the date of cancellation of the DEPB Scrip, illegal or contrary to law? H. Whether an extended period of Limitation could at all be invoked when there is a finding as recorded by the 2nd Respondent themselves, that the Appellants were not involved in fraud/collusion or willful suppression/mis -statement while they purchased the DEPB Scrip from the open market and for a valuable consideration? I. Whether the 2nd Respondent has ignored Section 28 of the Customs Act, 1962, by remaining silent upon the same in the final order, and by allowing the extended period of Limitation to work against the Appellants, especially since the 2nd Respondent had themselves in an interim order, granted an unconditional stay to the Appellants based on Section 28 wherein it was recorded that "Extended period for issue of SCN to recover duty is available under proviso to Section 28 only in exceptional circumstances mentioned in the proviso itself?
(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) We have heard learned Counsel for the Appellant.
(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: (i) East India Commercial Co. Limited v. Collector : AIR 1962 SC 1893 : 1983 (13) E.L.T. 1342 (S.C.) (ii) Collector of Customs, Bombay v. Sneha Sales Corporation, 2000 (121) E.L.T. 577 (S.C), and (iii) Sampat Raj Dugar : 1992 (58) E.L.T. 163 (S.C).;