TMI Blog2008 (1) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... held liable for confiscation under Section 111 (0) of Customs Act, 1962 (herein after referred to as the Act ). However, those goods not being available for confiscation, Redemption Fine was not imposed. (d) Penalty of ₹ 3,00,000 was imposed under Section 112 (a) of Customs Act, 1962. 1.2 In this Appeal the Appellant appealed against Order-in-original KOL/CUS/Port/45/2005 dated-21/3/05 passed by the learned Commissioner of Customs (Port) raising following demands and such appeal was registered as Appeal case No. CDM-36/2005 by the forum : (a) Duty of ₹ 6,84,633/- (Six lakhs eighty four thousand six hundred thirty three only) was levied in respect of consignments imported under forged and fake DEPB licence nos. 02602431 and 02602425, both dated 01.02.99 and interest was payable at the appropriate rate. (b) Goods valued CIF ₹ 15,09,881.52 (collectively) was confiscated under section 111 (0) of the Customs Act, 1962. However, as the goods were not available for confiscation, no redemption fine was imposed. (c) Penalty of ₹ 15,00,000/- (Rupees Fifteen Lakh only) was imposed under section 112 (a) of the Customs Act, 1962. 1.3 When the matter wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (viii)2006 (193) ELT 459 (Tri.-Del.) Leader Valves Ltd. vs. Commr. of Customs, Jalandhar (ix) 2003 (161) ELT 47 (Bom)- Taparia Overseas (P) Ltd. vs. U.O.I. 3. The Ld. JDR appearing for Revenue submitted that when the Appellants had no good title over the DEPB scrips, they were rightly debarred to claim immunity under law. They are, therefore, liable to duty and penalty which were rightly imposed. When forged documents were utilized for clearance at the time of import, such act has defrauded Revenue. Therefore, the Appellants are not entitle to any relief by this forum. In order to avoid confiscation proceeding, the Appellant have also disposed imported goods so as to make the same out of reach of the Customs Authorities. Therefore the speaking and reasoned orders passed by the Ld. Adjudicating Commissioner with proper conclusion drawn are not liable to be interfered. Also for the fraud detected, the plea of time bar does not apply. 4. Heard both sides and perused the record. After good length of hearing, the matter called for disposal of appeal on merit dispensing pre deposit. Accordingly, pre deposit was dispensed and appeals proceeded for disposal as hereinunder stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pal had denied averments of Sri Agarwal except stating that he introduced Sri Agarwal to Mr. N.K. Jalan, who was licence broker. On confrontation of statement of Sri Pal, Mr. Agarwal did not contradict his version. 5.5 It was found that the aforesaid questionable DEPB scrips were neither issued by the DGFT authorities in favour of either M/s. Ispat Alloys Ltd. nor M/s. Hindalco Industries Ltd. Those were also not lawfully transferred by the so called DEPB holders who disowned the said DEPB scrips said to have been issued in their favour and categorically denied to have issued any transfer letter to the Appellant nor had ever made any transactions with the Appellant in respect of DEPB scrips in question. 6. Having found that DEPB scrips used were fake and forged in absence of any rebuttible evidence, the next question arises for consideration is whether the Appellants are entitled to any relief. Hon'ble High Court of Calcutta in the case of ICI India Limited Versus Commr. of Customs (Port), Calcutta - 2005 (184) E.L.T. 339 (Cal.) held that when a credit was made available on a forged document, the same shall be non-est and whether there was collusion or fraud in the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Legal Fraud vitiates everything even judgements and orders of the Court. If a transaction has been originally founded on fraud, the original vice will continue to taint it, and not only is the person who has committed fraud is precluded from deriving any benefit under it, but also who derive advantage of it. In the case of Golden Tools International v. Joint DGFT, Ludhiana, 2006 (199) E.L.T. 213 (P and H), the Hon'ble High Court has also upheld cancellation of DEPB obtained fraudulently and levy of penalty under Section 11(2) of the Foreign Trade (Development and Regulation) Act, 1992 was sustained. 8. The observations of the former Lord Chief Justice of England, Sir Edward Coke, more than three centuries ago, that fraud avoids all judicial acts, ecclesiastical or temporal was noticed by the Hon'ble Supreme Court in S.P. Chengalvaraya-Naidu v. Jagannath, AIR 1994 SC 853. The Apex Court observed that an act of deliberate deception with the design of securing something by taking unfair advantage of another is a fraud . Fraud is a cheating intended to get an advantage. A person whose case is based on falsehood has no right to seek relief in equity. In Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not absolve them from liability to duty as well as other consequences of law for the basic reason that duty credit as per forged DEPB Pass Books was availed by the Appellants and that remained factually uncontroverted without any cogent or credible evidence led by them to refute the charge. We are of no different opinion that duty free imports made by the Appellant on the basis of DEPBs', fraudulently obtained tantamount to contravention of the provisions as engrafted by law and thus, no fault can be found with the order of adjudication confirming the duty demand and other consequences that flows from the said order, except to the extent hereinafter indicated. 12. So far as plea on limitation made by Appellants, it is noticeable that the duty not paid/escaped using the forged/fraudulent DEPB claim itself dragged the Appellant to the adjudication. Their tainted deal, no way exonerates them from the process of adjudication. In this connection we are inclined to agree with the view taken by Tribunal in the case of De-nocil Corpn. Protection Ltd. v. Commr. of Customs, Mumbai - 2004 (171) ELT 209 (Tri-Mumbai), and relevant parts of which in para 11 reads as : We are of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rify the authenticity of shipping documents and Bank remittance papers. We are of the view that such action and omission on the part of defaulting individual D.G.F.T. officials and Customs officials cannot be a ground for extending duty exemption when the conditions of the exemption notification issued in public interest are not met. Public exchequer cannot be allowed to be defrauded merely because some officials have either been negligent or collusive in their acts and or omissions. At the same time, we are of the firm view that the acts and omissions of the concerned D.G.F.T., Customs and Bank officials resulting in loss of customs duty should be thoroughly investigated and necessary action should be taken against the defaulting officials, if so warranted, both under the Customs Act, 1962 as well as under the relevant Conduct Rules. Hence, our directions as contained in paragraph 2 (iii) above. The Registry shall send a copy of this order to the Chief Commissioner of Customs, Nhava Sheva by name in view of our directions. 13. Having found factually that the Appellant had acted on the basis of forged, fake and fabricated document without bothering to enquire from the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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