COMISSIONER OF CUSTOMS (IMPORTS) BOMBAYversusM/S. HICO ENTERPRISES

                                 [2008f10 S.C.R. 1


             COM~SSIONER OF CUSTOMS (IMPORTS) BOMBAY                      A .
                                         \/.
                           MIS. HICO ENTERPRISES
                                           .          .
                         (Civil Appeal No. 2418 of 2006)
                                 APRIL 29; ·2008
                                                                          B
               [DR. ARIJIT PASAYAT, P.. SATHASIVAM AND DR.
                        MUKUNDAKAM SHARMA, .JJ] ·

                Customs Act, 1962:
                _s. 28(1) - Transferable Value Based Advance Licence·- C
           Purchased by assessee - Show cause notice to assessee
           alleging contravention of conditions of Notification no. 2031
           92 - Tribunal holding in favour of assessee ....: HELD: In view -
           of the fact that in the Notification there was no reference to
           alleged infraction by the original licence holder, judgment of D .
           the Tribunal does not suffer from any infirmity - Notification-   ·
           no. 203192 - Gus. -dated 19.-5. 1992.
         · -.. : The respondent:-assessee purchased transferable, ·
           Value· Based Advance Licence from the original iicence
           holder on 20.4.1994. A show cause and demand notice E
           dated"4.9.1999 was issued to the assessee_a:Ueging con-
           travention of conditions of Notification no .. 203/92-Cus
           date·d 19.5.1992. The Commissioner of Customs (Import)
           confirmed the demand. However, the Customs, Excise
        . and se·rvice Tax Appellate Tribunal held that the tran~feree F
           could not be once again compelled to prove ·that export
           obligation under· the. Notification was fulfilled by the origi-
           nal licence holder; and that the transferee could not be .
          .called upon to fulfil condition (v)(a)".of the Notification.
           Aggrieved,_ the Revenue filed the instant appeal.               G
    ---~--                                                 .
             ~DlSml ing the appeal, the Court ·
    --     ---H_l:J.D: In view of the fact that in the show cause
           notice issued c:>n 4.3.1999, there was no reference to th~
                                         1                               .H
•
'
      2               SUPREME COURT REPORTS               [2008] 10·S.C.R.


· A   alleged infraction by the transferor of the licence in ques-
      tion, the judgment of the CESTAT does not suffer from
      any infirmity to warrant interference. [para 6] [3-G]
            CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2418
      ·of 2006                      --
 B
           From the final Order No. M/1152/WZB/2004/C-1dated20/
      9/2005 of the Customs, Excise & Service Tax Appellate Tribunal,
      West Zonal Bench, Mumbai in Appeal No. C/1345/2002-Mum.
                                          WITH
 c
           C.A. Nos. 2447, 4009 of 2007, 4680 of 2006 and 645
      and 2529 of 2008.                ·<0 ~

            V. Shekhar, T.R. Andhyarujina, D.A. Dave, S.K. Bagaria,
      S. Ganesh, Abh.igya, Alka Sharma, Arvind Kumar Shukla,
 D    P.Parmeswaran, B. Krishna Prasad, T§lrun Gulati, Jaive.er
      Shergill, ,Tushar Jarwal, Praveen Kumar, V.M. Dopiphode, Nitin
      Mehta,' Rajesh Kumar, Chandra Shekhar, Himanshu. Shekhar,
      An:inabh Chowdhary, Anupam Lai Das, Ruqy Singh Ahuja,' Javed
      MiJzaffar, Pranav Sen, Umesh K. Khaitan, Rohina Nath and Dipti
 E    S~rin for the c:ippearing parties.

                  The Judgment of the Court was delivered .by
      .   ~   .


                  Dr. AR.IJ!T PASAYAT,J. Heard.
         ·. Challenge in this appeal isJo the order passed by Customs, ·
 F ·Excise & Service Tax Appellate Tribunal, West Zohal Bench, Mumbai
    (i~ s_ho_rf'CESTAT') allowing the appeal filed by the appellan.t.
          . . · Background_ facts in a nutshell a~e as follows:
          ' · . Appellant acquired and/or i:>urch·ased transferable Value
 G    Based Advance Licenses (in short"'VAB.AL') including a license
    dated 19.1.1993-94 Issued in the name of M/s. Am"ar Taran Ex-            J.- •
    ports, New Delhi. Same was purchased on 20.4.1994. Appel-
     lant on the basis of that imported consignment vide Bill of Entry
   . no. 881 dated 30.3.1994. Same was allowed duty free allow-
 H ance. By show cause notice dated· 04.03.1999 appellant was
                                                          ~~             ~
                                                                               •
           COMMSSIONER OF CUSTOMS (IMPORTS) BOMBAY                      3
           v. M/S. HICO ENTERPRISES [Dr. ARIJIT PASAYAT,J.]

    called upon to show cause why an amount of Rs. 16, 74, 702/- could      A
    not be recovered and demanded in terms of proviso to Section
    28(1) of the Customs Act, 1962 (in short the 'Act') for alleged con-
    travention of certain conditions of Notification No. 203/92-Cus dated
    19.05.1992. Noticee denied the allegations. However, Commis-
~   sioner of Customs (Import) confirmed the demand along with in-
                                                                            8
    terest and penalty of Rupees One lakh. Same was held to be
    jointly payable by the original license holder and licensee. It was
    held that goods were liable in confiscation under Section 111 of
    the Act. As the goods w_ere not available penalties of Rs. 3 lakhs
    and Rs. 1 lakh were levied under Section 112 (a) of the Act.
          In view of divergence of views, the matter was referred to
                                                                            c
    a larger Bench of the Tribunal.
           The Tribunal inter alia held as follows:
           "Hence, the satisfaction arrived at in the above manner is
           final and binding on the customs department. The                 D
           Customs department cannot compel the appellants
           impqrter, who are the transferee, to once again prove that
           the export obligation has been fulfilled by the original
           licence-holder in accordance with the notification aRd
           with9ut availing input stage credit"                             E
           "The transferee cannot be called upon to fulfill the condition
           (v) (a) of the Notification No. 203/92-Cus. It is the original
           licencee, who has to satisfy the above referred condition,
           but-not the transferee of the licence. In the result, the
           reference is answered accordingly".                              F
         In this appeal challenge is to the aforesaid conclusions.
    Learned counsel for the respondent pointed out that no role was
    ascribed to it in the show cause notice.
           It is seen that in view of the fact that in the show cause no-   G
    tice issued on 4.3.1999, there was no reference to the alleged
    infraction of M/s. Amar Taran Exports, the transferor of the license
    in question, the judgment of the CESTAT does not suffer from
    any infirmity to warrant interference. The appeal is dismissed.
    R.P.                                              Appeal dismissed.     H