Judgment M.M.Kumar, J. 1. The revenue has filed the instant appeal under Section 130 of the Customs Act, 1962 (for brevity, the Customs Act), by challenging the order dated 9-6-2006 passed by the Customs, Excise and Service tax Appellate Tribunal, New Delhi (for brevity, The Tribunal). The revenue has assailed the order passed by the Tribunal on the principal ground that once the Joint Director General of Foreign Trade had cancelled the Duty Exemption Pass Book, which is commonly known as DEPB Scheme, issued to M/s. Parker Industries, 184, Dilbagh Nagar, Jalandhar, which order was upheld in appeal by the Additional Director General of Foreign Trade, then the assessee respondent, who had purchased the DEPB from M/s. Parker Industries, was not entitled to avail any benefit. 2. The Government of India in order to boost export had announced various concessions including exemption from payment of Central Excise Duty, Customs Duty and formulation of various schemes under the Import and Export Policy, known as EXIM Policy, which are formulated under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (for brevity, the Act). DEPB is one of those schemes framed under the EXIM policy, which is in the nature of a licence to import material without payment of Customs duty and is in the form a pass- book. The pass-book is issued against exports and fixed percentage of value of exports made is credited in the DEPB pass-book, which is accounted for against the imports. According to the procedure, an application for obtaining DEPB is made to the Joint Director General of Foreign Trade on a prescribed form accompanied by a bank certificate of exports and realisation of export proceedings in addition to other documents. The application for obtaining DEPB can be made even before realisation of export proceedings. If the export proceedings are not realised within a period of six months or within the extended period then the DEPB holder is liable to pay an amount equal to DFPB availed along with interest at the rate of 24 per cent from the date of issue of DEPB till the date of deposit. It is further appropriate to mention that DEPB is tradable and the purchaser can avail the same benefits which could have been availed by the original exporter. The Duty Entitlement Pass-Book(s) Scheme reads as under : ...... It is further appropriate to mention that DEPB is tradable and the purchaser can avail the same benefits which could have been availed by the original exporter. The Duty Entitlement Pass-Book(s) Scheme reads as under : ...... Under this scheme, the exporter is given duty entitlement at notified rates, which enable him to import inputs required for export production duly-free. He can also make use of this credit to import freely importable goods and or such credit can be transferred. The DEPB scrip is transferable scrip and it is regularly traded in the market. (d) That the main features of the DEPB scheme as operated under the Export Import Policy are the following : (i) Duty exemption under the scheme is available.against export of goods. (ii The exemption is to be availed by debiting credits, which is to be earned at the specific rate notified by DGFT for the relevant product which is exported. (ii The DEPB credit is subject to realisation of export proceeds. If the export proceeds are not realised within six months or such extended period as allowed by R.B.I., the D.E.P.B. Holder has to pay cash equivalent to the credit amount. 3. The assessee-respondent i.e. M/s. Vallabh Design Products, Ludhiana, was a beneficiary of DEPB scrip No. P/L/2107416, dated 7-11-1997, which was transferred to it by M/s. Parker Industries, Jalandhar. The later had obtained the afore-mentioned DEPB scrip fraudulently by forging Bank Certificate of Export Realisation (for brevity, the BCER) purported to have been issued by the Punjab and Sind Bank, Mota Singh Nagar, Jalandhar. On the basis of the forged certificate, he applied to the Joint Director General of Foreign Trade, Ludhiana, for issuance of transferable Duty Entitlement Pass Book, which was then issued to him by the Joint Director General Foreign Trade. After purchase of afore-mentioned DEPB scrip for a consideration, the assessee-respondent effected import of goods by payment/off setting import duties against credit available in the said DEPB scrip for import of the goods under Bill of Entry No. 1246, dated 15-11-1997, free of duty in terms, of Notification No. 34/97-Cus., dated 7-4- 1997. The duty otherwise realisable was Rs. 62,672/-. 4. When the fraud came to light, Joint Director of Foreign Trade, Ludhiana, cancelled the DEPB already issued to M/s. Parker Industries on the basis of forged BCER bearing No. P/L/21074, dated 7-11-1997. The duty otherwise realisable was Rs. 62,672/-. 4. When the fraud came to light, Joint Director of Foreign Trade, Ludhiana, cancelled the DEPB already issued to M/s. Parker Industries on the basis of forged BCER bearing No. P/L/21074, dated 7-11-1997. After recording the finding, the Commissioner Customs, Amritsar, passed an order-in-original on 27-4-2004 (Annexure P/4 ) holding as under : M/s. Vallabh Design Products have also contested the proposed penal action against them on the ground that they have just purchased the said transferable DEPB Scrip as genuine importer and had made no wilful mis-statement or fraud. I find nothing on record to infer that M/s. Vallabh Design Products, Ludhiana had purchased the freely transferable DEPB scrip otherwise than in a bona fide manner and utilized the same towards debit/exemption of duty and there is nothing to suggest of his having colluded with the exporter who obtained the DEPB scrips by fraudulent manner. Therefore, I do not hold them liable to penal action under Section 112 of the Customs Act, 1962. In view of above I pass the following orders : 1 I hold the goods valued at Rs. 2,09,252/- importer (imported?) vide Bill of Entry No. 1216, dated 15-11- 1997 liable to confiscation under Section 111(o) of the Customs Act, 1962 but since the goods are not available hence no order for their confiscation. 2 I Order the recovery of duty amounting to Rs. 62,672/- (BCD Rs. 31,388/- + CVD Rs. 31,284/-) from M/s. Vallabh Design Products, 4628/1A, Street No. 5, Jain Temple Road, Sunder Nagar, Ludhiana. Under Section 28 of the Customs Act, 1962 . 3 I order the recovery of interest due from M/s. Vallabh Design Products, 4628/1A Street No. 5, Jain Temple Road, Sunder Nagar, Ludhiana. Under Section 28AB of the Customs Act, 1962 . 4 I impose personal penalty of Rs. Sixty-two thousands only on M/s. Parker Industries, 184, Dilbagh Nagar, Jalandhar under Section 112(b) of the Customs Act, 1962 . 5 I refrain from imposing penalty on M/s. Vallabh Design Products, 4628/1A, Street No. 5, Jain Temple Road, Sunder Nagar, Ludhiana. (M.S. Negi) Commissioner Customs, Amritsar. 5. 4 I impose personal penalty of Rs. Sixty-two thousands only on M/s. Parker Industries, 184, Dilbagh Nagar, Jalandhar under Section 112(b) of the Customs Act, 1962 . 5 I refrain from imposing penalty on M/s. Vallabh Design Products, 4628/1A, Street No. 5, Jain Temple Road, Sunder Nagar, Ludhiana. (M.S. Negi) Commissioner Customs, Amritsar. 5. The assessee-respondent approached the Tribunal, which in turn placed reliance on a decision in the case of HICO Enterprises v. CC, Mumbai, 2005 (189) E.L.T. 135 (Tribunal-LB) = 2005 (71) RLT 225 (CESTAT-LB) and set aside the order passed by the Commissioner of Customs, Amritsar, and allowed the appeal. The operative part of the order of the Tribunal reads as under : 3. I find that the issue involved in this case is squarely covered by the decision of Larger Bench in the case of HICO Enterprises v. CC, Mumbai as reported in 2005 (189) E.L.T. 135 (Tri.-LB) = 2005 (71) RLT 225 (CESTAT-LB). I may read Paragraph 33 : Where transfer has been effected without notice to the transferee of alleged fraud, the concept of fraud vitiate everything is not applicable as licence was transferred for value, arising out of importable transaction governed by any law. 4 Accordingly since the issue is covered by the Larger Bench Division, I do not find any reason to sustain the impugned order. The impugned order is liable to be set-aside and I do so. Appeal allowed, with consequential relief, if any. 6. It is appropriate to mention that the Joint Director General of Foreign Trade vide its order dated 16-1-2002 had cancelled the DEPB issued on the basis of forged document BCER. 7. Mr. Ashwini Kumar Bansal, learned Counsel for the appellant has vehemently argued that once the certificate ceased to exist on account of cancellation order by the Joint Director General of Foreign Trade then the very basis of seeking exemption from payment of duty is knocked out and the assessee-respondent is liable to pay duty. In support of his submission, learned Counsel has placed reliance on a judgment of the Honble Supreme Court in the case of S.P. Chengalvaraya Naidu v. Jagannath , AIR 1994 SC 853, and argued that fraud avoids all judicial acts, ecclesiastical or temporal . In support of his submission, learned Counsel has placed reliance on a judgment of the Honble Supreme Court in the case of S.P. Chengalvaraya Naidu v. Jagannath , AIR 1994 SC 853, and argued that fraud avoids all judicial acts, ecclesiastical or temporal . He has also placed reliance on another judgment of the Honble Supreme Court in the case of Commissioner of Customs v. Essar Oil Ltd. , 2004 (172) E.L.T. 433 (S.C.) = (2004) 11 SCC 364. He further relied upon a Division Bench judgment of this Court rendered in the case of M/s. Golden Tools International v. Joint Director General of Foreign Trade, Ludhiana (CWP No. 15278 of 2004, decided on 22-11-2005) - 2006 (199) E.L.T. 213 (P&H). Learned Counsel has also cited a judgment of Honble the Supreme Court in the case of New India Assurance Co. v. Kamla and others , AIR 2001 SC 419, and argued that once a driving licence has been found to be forged then its mere renewal by a statutory authority does not get it legally sanctified. He has submitted that a fabricated and forged document would continue to be the same and any benefit obtained on that basis must be considered illegal and unlawful. Learned Counsel also placed reliance on a Division Bench judgment of this Court in the case of The Commissioner of Customs v. M/s. Parker Industries, Jalandhar (Custom Act Appeal No. 1 of 2006, decided on 7-11-2006) [2007 (207) E.L.T. 658 (P&H)]. 8. Mr. Pawan Kumar Pahwa, learned Counsel for the assessee-respondent, has submitted that the DEPB scrip was transferred to the assessee-respondent by M/s. Parker Industries and the benefits by the assessee-respondent were availed on 7-11-1997, which amounted to Rs. 62,672/-. The Joint Director General of Foreign Trade cancelled the DEPB availed by the assessee-respondent on 16-1-2002. It has been emphasised that under Section 28 of the Customs Act, no notice could be issued to the assessee-respondent as the period of six months available for the purpose had expired. The extended period of limitation of five years admissible under the proviso to Section 28 of the Customs Act, would not be available to the revenue because there are categorical findings recorded by the Commissioner of Customs and Excise, Amritsar that the assessee-respondent had not purchased the freely transferable DEPB scrip otherwise than in a bona fide manner and utilised the same towards debit/exemption of duty. Learned Counsel has submitted that there is further finding that the assessee-respondent had neither colluded with the exporter nor obtained DEPB fraudulently and the Commissioner had not held the assessee-respondent liable to any penal action under Section 112 of the Customs Act. In support of his submission, learned Counsel placed reliance on various judgments including the judgment of Honble the Supreme Court in the cases of Aban Loyd Chiles Offshore Ltd. . Commissioner of Customs , 2006 (200) E.L.T. 370; East India Commercial v. Collector of Customs , 1983 (13) E.L.T. 1342 (S.C.) = AIR 1962 SC 1893; Collector of Customs, Bombay v. Sneha Sales Corporation , 2000 (121) E.L.T. 577 (S.C.); and Birla Corporation Ltd v. Commissioner of Central Excise, 2005 (186) E.L.T. 266 (S.C.). 9. 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 it had purchased DEPB from the open market in the bona fide belief of its being genuine. The assessee-respondent had paid full price and accordingly had availed the benefit. 10. It is also worth noticing that the assessee-respondent was issued a show cause notice dated 10-6-2002 (P-2) before cancelling the DEPB, which was obtained by M/s. Parker Industries, however, we are 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 crystalised, the imports having been affected on 15-11-1997. The revenue cannot avail the extended period because the assessee-respondent has not been accused of mis-representation, collusion or suppression of facts within the meaning of proviso to Section 28 of the Customs Act. 11. The matter is not res integra . The revenue-appellant has also filed other appeals challenging similar others passed by the Tribunal, bearing (CUSAP Nos. 13, 14, 15 and 17 of 2006. Vide judgment rendered in the case of Commissioner, Customs v. M/s. Leader Valves Ltd. (CUSAP No. 15 of 2006, dated 15-3-2007), we have already dismissed the afore-mentioned appeals. 12. In view of above, there is no merit in the instant appeal and the same is accordingly dismissed.