PerJ.H. Joglekar :

On hearing both sides on the application for waiver of predeposit of Rs. 30,55,170/- imposed as duty and Rs. 3 lakhs as penalty, we find that the issue being small, the appeal itself could be disposed of. We do so after granting the prayer as made.

2. The appellants were transferee holders of value based advance licences. Imports were made by them during June 1993 to December 1993 in terms of Notification No. 203/92. Show cause notice issued in July 1996 alleged that in the manufacture of export goods input stage credit had been availed of and demanded the duty and sought to levy penalty. The importers filed reply saying that they had received the licence with the transferability claused endorsed thereupon by the DGFT, that they had purchased the licence openly on payment of the premium and that they were not aware of any contravention committed earlier by the transferrers. Copies of the reply were sent to the transferrers also. The Commissioner did not discuss these submissions in his order at all but confirm the duty and imposed penalty.

3. The advance licences are made transferable by the issuing authority on satisfaction that the burden cast upon the holder there under has been discharged. The transferee can import goods under the strength of the licence. The issue whether for the misrepresentation made by the transferrer, the extended period could be invoked against the transferee, had come in for consideration in the interim order passed by the Tribunal in the case of M.C. Daver Aromatics P. Ltd. Vs. Commissioner of Customs, Mumbai, 1999 (113) ELT 91 (Tribunal). In this order the Tribunal had observed as follows :

"In the judgment in the case of Goodluck Industries Vs. C.C.E., Calcutta, 1999 (108) ELT 818, the Tribunal was examining the applicability of condition No. 5 in the Notification No. 208/92. It was held that it was to be presumed that the licensing authority had satisfied themselves about the fulfilment of its conditions before making endorsement of transferability of the licence. Once that is done the burden of proving condition No. 5 could not be thrown on the ultimate importer who imported the goods on the strength of a transferred licence. The situation in the present case is even more in favour of the importer. In terms of Section 28 the statement etc. is to be made by the very person who is the importer. Where the person who is made the misdeclaration is different the burden under Section 28 cannot be put on the importer. On the ground of limitation, a prima facie case having been made by the applicants, we grant unconditional stay and waiver of predeposit of duty confirmed and the penalties imposed."

4. Adopting the logic we hold that the demand was barred by limitation. The appeal is therefore allowed with consequential relief if any.