- (1.) This appeal under Section 130 of the Customs Act, 1962 (hereinafter referred to as the Act') has been filed by the assessee against the order dated 18-3-2008 [2008 227 ELT 330 (T)] passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the tribunal'), confirming the demand of custom duty with interest. The appeal under the said provision lies to this Court only on a substantial question of law. In para 6 of the appeal, following substantial questions are sought to be raised :- (a) Whether extended period of five years is available for the notice dated 3-10-2006 issued under Section 28(1) of the Customs Act, 1962 (hereinafter referred to as the Act) when the ingredients of Fraud and with intent to evade payment of duty are absent in the said Section? (b) Whether demand raised under Section 28(1) of the Act, is not time barred in respect of Bill of Entry No. 1289 dated 22-5-2003 and two Ex-Bonds Bills of Entry Nos. 274 dated 23-6-2003 and 282 dated 26-6-2003 and consignments cleared on 27-5-2003, 23-6-2003 and 30-6-2003 respectively. (c) Whether in the state of law, remand is at all necessary on the aspect on payment of duty and imposition of penalty and on time bar when all the aforesaid three issues are settled by judgments of this Hon'ble Court in- (1) Commissioner of Customs V/s. Leader Valves Limited, 2007 218 ELT 349(P&H) ; (2) Commissioner of Customs V/s. Vallabh Design Products, 2007 219 ELT 73. Confirmed by Hon'ble Supreme Court in Commissioner of Customs V/s. Leader Valves,2008 227 ELT 29 A . in SLP (Civil) No. CC3493 of 2008 vide order dated 10-3-2008, . And on time bar in : (1) Commissioner of Customs V/s. Vallabh Design Products, 2007 219 ELT 73; (2) Commissioner of Customs V/s. Leader Valves Limited,2007 83 RLT 921; (3) Aban Lloyd Chiles Offshore Limited V/s. COC, Maharashtra, 2006 6 SCC 482 at 489 Para 19. (d) Whether Mr. Vijay Singh Bishnoi's statement dated 24-11-2004 which is in violation of Section 108 of the Act, can be relied upon in the proceedings? (e) Whether interest under Section 28AB of the act is leviable in absence of determination of short levy under Section 28 of the Act?
(2.) Facts noted in the impugned order of the Tribunal or otherwise on record are that the appellant imported consignments through ICD Balabhgarh using transfer release advices (TRAs) issued by the Bombay Customs House. On verification, it was found that DEPB licensees on the basis of which TRAs were issued, were not genuine. The goods were cleared in May/June 2003 and vide letter dated 5-8-2003, the Assistant Commissioner, ICD, Faridabad informed the appellant that TRAs issued against the DEPB scrips were forged and that the DEPB were also forged. The appellant was required to deposit the duty with interest in lieu of DHPB benefit availed by it. The operative part of the notice is as under :- In this connection, investigation made by SIIB, Jawahar Nehru Customs House, district Raigarh, Maharashtra have confirmed the RAs issued against the above DEPB scrips are forged. It has also been confirmed that DEPB scrips are also forged. In view of the above you are requested to deposit an amount of Rs. 1,29,43,927/- as duty plus interest in lieu of DEPB benefit availed by you against the above DEPB and RAs immediately, failing which action as deemed fit under the Customs Act will be taken to recover the said amount.
(3.) The appellant vide letter dated 7-8-2003 wrote back, inter alia, to the effect that it was surprised to learn about the forgery and was taking steps to lodge FIR against the transferor and sought time to make payment. This letter was followed by deposit of the amount of duty on 12-8-2003 under protest. After completion of investigation, show cause notice dated 3-10-2006 was issued to the appellant alleging evasion of duly by seeking exemption against debits in releasing the advices which were forged and which were not genuinely issued by the competent authority. The notice further mentioned that duty was demanded on 5-8-2003 and was paid under protest on 12-8- 2003. It was also alleged that the appellant had failed to verify genuineness of the transaction and the document being forged was void ab initio and the duty had been evaded unlawfully by submission of forged scrip's and goods were illicitly removed for home consumption. The appellant was thus required to show cause as to why - (a) the goods cleared under the bills of entries as mentioned under para 1 above should not be held liable for confiscation under Section 111(m) of the Customs Act, 1962 ; (b) the Customs duty amounting to Rs. 1,29,43,927/- should not be demanded under proviso to Section 28(1) of the Act ibid; (c) the amount of Rs. 1,29,43,927/- paid by them vide challan No. 1611 dated 12-08-2003 should not be appropriated under the Section 28(2) of the Act ibid; (d) interest on duty amount as payable above should not be demanded under Section 28AB of the Act ibid ; (e) penalty should not be imposed on them under Section 114A of the Act ibid;;