IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CUSAP No. 4 of 2009 DATE OF DECISION: April 21, 2009 Commissioner of Customs (Preventive) Amritsar …Appellant Versus M/s Deebee Marketing Pvt. Ltd. …Respondent CORAM: Hon’ble Mr. Justice M.M. Kumar Hon’ble Mr. Justice Augustine George Masih Present: Mr. Mahesh Dheer, Advocate, for the appellant. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This order shall dispose of CUSAP Nos. 4, 7, 8, 9 and 10 of 2009 because common questions of law and facts are involved in these appeals. 2. The revenue has filed these appeals under Section 130 (1) of the Customs Act, 1962 (for brevity, ‘the Act’) against the order No. 411/2008-SM [BR], dated 4.3.2008 and another common order No. 28-31/2008-SM [BR], dated 30.11.2007 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (for brevity, CUSAP No. 4 of 2009 ‘the Tribunal’). The revenue has formulated various questions of law. However, the necessity of dealing with these questions is obviated because it has been categorically found by the Tribunal and the authorities below that although the DEPB scrips were issued on the basis of forged documents and were indeed cancelled by the authorities but the assessee is not at fault. The assessee is not party to the fraud and had purchased the DEPB scrips from the open market in the bonafide belief of its being genuine. If at a later stage, the DEPB scrips have been found to be fabricated and obtained on the basis of forged documents then the assessee could not be deprived of the benefits which were legitimately available to him. 3. It is appropriate to notice that similar appeals, namely, CUSAP Nos. 1 and 2 of 2009, against similar order dated 27.12.2007 passed by the Tribunal, were filed by the revenue. In those cases the Tribunal has placed reliance on a Division Bench judgment of this Court [of which one of us (M.M. Kumar, J.) was a member] in the case of Commissioner of Customs v. Leader Valves Ltd., 2007 (218) ELT 349 (P&H) wherein similar findings were recorded by the Division Bench in para 9, which reads thus: “After hearing learned counsel for the parties, we are of the considered view that this appeal is devoid of any merit. The assessee respondent admittedly is not a party to the fraud. There are categorical finding that they had purchased DEPB from the open market in the bona fide belief of its being genuine. They had paid full price and accordingly have availed the benefit. Merely because at a 2 CUSAP No. 4 of 2009 later stage, the DEPB has been found to be fabricated and fake on the basis of BCER the assessee-respondent could not be deprived of the benefits which were legitimately available to them. It is also worth noticing that the assessee respondent was never issued any show cause notice before cancelling the DEPB which was obtained by M/s Parker Industries and obviously the notice was also to be issued to them alone. We are further of the view that notice under Section 28 of the customs Act could not be issued to the assessee respondent because a period of six months stipulated by Section 28 of the Customs Act stood already expired and the rights of the parties had been crystallized. The revenue cannot avail the extended period because the assessee respondent could not be accused of mis- representation, collusion or suppression of facts within the meaning of proviso postulated by Section 28 of the Customs Act. Therefore, there is no merit in this appeal.” 4. The afore-mentioned view taken by the Division Bench has been upheld by the Supreme Court in Special Leave Petition (Civil) No. 6984 of 2008 filed by the revenue and the SLP has been dismissed both on the ground of delay as well as on merits. Keeping in view of the abovesaid legal proposition of law, a Division Bench of this Court, of which one of us (M.M. Kumar, J.) was a member, dismissed CUSAP Nos. 1 and 2 of 2009 on 5.3.2009. 3 CUSAP No. 4 of 2009 5. The same reasoning would apply with all force even to the facts of the present appeals. Therefore, the appeals do not warrant admission and are liable to be dismissed. Accordingly these appeals fails and the same are dismissed. 6. In view of dismissal of the appeals on merits, we do not feel the necessity of passing any order on the applications seeking condonation of delay in refiling the appeals. (M.M. KUMAR) JUDGE (AUGUSTINE GEORGE MASIH) April 21, 2009 JUDGE Pkapoor 4