IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

     CIVIL  APPEAL No. 2418  OF  2006

   COMMISSIONER OF CUSTOMS (IMPORTS) BOMBAY ...   Appellant(s)                         Versus    M/S. HICO ENTERPRISES ...  Respondent(s)

J U D G M E N T

  Dr. ARIJIT PASAYAT,J.

Heard.

Challenge in this appeal is to the order passed by Customs, Excise & Service

Tax Appellate Tribunal, West Zonal Bench, Mumbai (in short 'CESTAT') allowing

the appeal filed by the appellant.

Background facts in a nutshell are as follows:

Appellant  acquired  and/or purchased  transferable  Value  Based  Advance

Licenses (in short 'VABAL') including a license dated 19.1.1993 i94ssued in the name

of  M/s.  Amar  Taran  Exports,  New  Delhi.  Same  was  purchased  on  20.4.1994.

Appellant on the basis of that imported consignment vide Bill of Entry no. 881 dated

30.3.1994.  Same was  allowed  duty  free  allowance.   By  show cause  notice  dated

04.03.1999 appellant was called upon to show cause why an amount of Rs. 16,74,702/-

could not be recovered and demanded in terms of proviso to Section 28(1)  of the

Customs Act, 1962 (in short

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the 'Act') for alleged contravention of certain conditions of Notification No. 203/92-

Cus dated 19.05.1992.   Noticee denied the allegations.  However, Commissioner of

Customs (Import) confirmed the demand along with interest 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 were 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 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 Customs

department  cannot  compel  the  appellants  importer,  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 and without availing input stage credit”

“ 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”.

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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 notice 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.

                    ...................J.                                 (Dr. ARIJIT PASAYAT)   

                   ...................J.                         (P.SATHASIVAM)

              ....................J.                         (Dr.MUKUNDAKAM SHARMA)

New Delhi, April 29, 2008.