The Commissioner of Customs and Central Excise vs S. Suryanarayana,Director

Challa Kodanda Ram, J.—This Central Excise Appeal u/s 130 of the Customs Act, 1962 is filed at the instance of the Department against the Order dated 19.03.2012 in Appeal No. E/C/ST/266/2009 corresponding to Final Order No. 243/2012 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (for short "CESTAT") by raising the following questions of law for adjudication.

i) As held by the Hon''ble High Court of Andhra Pradesh, in the case of M/s. Sravani Impex Pvt. Ltd. and CESTAT''s New Delhi Order in the case of M/s. Saluja Exim Ltd. a Others, the DEPB Scheme, as covered by Customs Notifications, is a customs duty exemption notification and the power to exempt would include within its ambit the power to demand duty in the event such exemption is misused and that once the benefits of the fraudulently obtained DEPB Scrips have been utilized by the exporters, the only course open is to demand repayment of the Credit (Customs Duty) u/s 28 of the Act, as otherwise, the very purpose of framing the DEPB Scheme would be defeated. In the light of the above judgments, whether Hon''ble CESTAT, Bangalore is correct in setting aside the Commissioner''s Order-in-Original No. 22/2008-Adjn-Cus dated 29.12.2008 on the grounds that Customs authorities cannot-unilaterally alter the amount of DEPB benefit given by the DGFT authorities based on the export documents relating to exports already made?

ii) Whether the CESTAT is right in regularizing the credit availed fraudulently by over-valuation of goods exported?

iii) Whether the CESTAT has rightly interpreted and applied the Notification Nos. 45/2002-Cus dated 22.04.2002 as amended, 96/2004-Cus dated 17.09.2004 as amended and 89/2005-Cus dated 31.12.2005?

A perusal of the order of the Tribunal would indicate that the respondent, being aggrieved by the Order-in-Original No. 22/2008-Adjn-Cus, dated 29.12.2008 imposing penalty of Rs. 10.00 lakhs u/s 114 of the Customs Act, filed the appeal before the Tribunal. The Tribunal had found that the company, in which the respondent is a Director, itself had not violated any of the provisions of the Customs Act and in particular had not misutilized the DEPB scrips and thereby exonerated itself from the levy. Inasmuch as the company itself was exonerated the penalty imposed on the respondent was also set aside. The substantial questions of law said to have been arising from the orders of the Tribunal only relate to the company and no question of law as to why the order of exoneration of penalty passed in favour of the respondent needs to be interfered with, has been raised. In other words, there is no question of law which has been raised before this Court for consideration as arising from the orders of the Tribunal to maintain the appeal u/s 130 of the Customs Act.

Hence, the Central Excise Appeal is dismissed as not maintainable. No order as to costs.

As a sequel to dismissal of the appeal, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.