The main legal point established in the judgment is that benefit arising out of fraud cannot be claimed, and willful suppression or misstatement attracts the proviso to Section 28 of the Customs Act, 1962.

Adarsh Kumar Goel, J.

1. This appeal under Section 130 of the Customs Act, 1962 (hereinafter referred to as #24;the Act#25;) has been filed by the assessee against the order dated 18-3-2008 [2008 (227) E.L.T. 330 (T)] passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as #24;the tribunal#25;), confirming the demand of custom duty with interest. The appeal under the said provision lies to this Court only on a substantial question of law. In para 6 of the appeal, following substantial questions are sought to be raised :-

#28;(a) Whether extended period of five years is available for the notice dated 3-10-2006 issued under Section 28(1) of the Customs Act, 1962 (hereinafter referred to as the Act) when the ingredients of #28;Fraud#29; and #28;with intent to evade payment of duty#29; are absent in the said Section? (b) Whether demand raised under Section 28(1) of the Act, is not time barred in respect of Bill of Entry No. 1289 dated 22-5-2003 and two Ex-Bonds Bills of Entry Nos. 274 dated 23-6-2003 and 282 dated 26-6-2003 and consignments cleared on 27-5-2003, 23-6-2003 and 30-6-2003 respectively. (c) Whether in the state of law, remand is at all necessary on the aspect on payment of duty and imposition of penalty and on time bar when all the aforesaid three issues are settled by judgments of this Hon#25;ble Court in- (1) Commissioner of Customs v. Leader Valves Limited - 2007 (218) E.L.T. 349 (P&H) = 2007 (83) RLT 921; (2) Commissioner of Customs v. Vallabh Design Products - 2007 (219) E.L.T. 73. Confirmed by Hon#25;ble Supreme Court in Commissioner of Customs v. Leader Valves in SLP (Civil) No. CC3493 of 2008 vide order dated 10-3-2008, 2008 (227) E.L.T. A29. And on time bar in : (1) Commissioner of Customs v. Vallabh Design Products - 2007 (219) E.L.T. 73; (2) Commissioner of Customs v. Leader Valves Limited - 2007 (83) RLT 921; (3) Aban Lloyd Chiles Offshore Limited v. COC, Maharashtra reported as 2006 (200) E.L.T. 370 (S.C.) = (2006) 6 SCC 482 at 489 Para 19. (d) Whether Mr. Vijay Singh Bishnoi#25;s statement dated 24-11-2004 which is in violation of Section 108 of the Act, can be relied upon in the proceedings? (e) Whether interest under Section 28AB of the act is leviable in absence of determination of short levy under Section 28 of the Act?

2. Facts noted in the impugned order of the Tribunal or otherwise on record are that the appellant imported consignments through ICD Balabhgarh using transfer release advices (TRAs) issued by the Bombay Customs House. On verification, it was found that DEPB licensees on the basis of which TRAs were issued, were not genuine. The goods were cleared in May/June 2003 and vide letter dated 5-8-2003, the Assistant Commissioner, ICD, Faridabad informed the appellant that TRAs issued against the DEPB scrips were forged and that the DEPB were also forged. The appellant was required to deposit the duty with interest in lieu of DHPB benefit availed by it. The operative part of the notice is as under :-

#28;In this connection, investigation made by SIIB, Jawahar Nehru Customs House, district Raigarh, Maharashtra have confirmed the RAs issued against the above DEPB scrips are forged. It has also been confirmed that DEPB scrips are also forged. In view of the above you are requested to deposit an amount of Rs. 1,29,43,927/- as duty plus interest in lieu of DEPB benefit availed by you against the above DEPB and RAs immediately, failing which action as deemed fit under the Customs Act will be taken to recover the said amount.#29;

3. The appellant vide letter dated 7-8-2003 wrote back, inter alia, to the effect that it was surprised to learn about the forgery and was taking steps to lodge FIR against the transferor and sought time to make payment. This letter was followed by deposit of the amount of duty on 12-8-2003 under protest. After completion of investigation, show cause notice dated 3-10-2006 was issued to