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TMI Blog2007 (3) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1, while confirming the penalties imposed under Item No. 7 in Order-in-Original (which is the subject matter of Appeal) and also the penalties under Item No. 6 in all the other Orders-in-Original, which are the subject matter of the other appeals. Subject to this modification, the impugned Orders of Commissioner (A) are set aside and the orders-in-original in all these cases stand restored against the respondents. All the appeals are accordingly allowed. - Justice R.K. Abichandani, Shri M. Veeraiyan, JJ. REPRESENTED BY : Shri D.S. Negi, SDR, for the Appellant. None, for the Respondent. [Order per : Justice R.K. Abichandani, President]. All these appeals have raised common issue and are directed against the commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned in the Orders-in-Original. 4. From the aforesaid established facts, it is evident that the DEPB licences were fake and, therefore, void ab initio. In the context of similar fake use of DEPB licence, a Division Bench of this Tribunal in ICI India Ltd. v. Commissioner of Customs, Calcutta, reported in 2003 (151) E.L.T. 336, following the decision of the Hon ble Supreme Court in New India Assurance Co. v. Kamla Ors., reported in 2001 (4) SCC 342, in which it was held that, What was originally a forgery would remain null and void forever........Forgery is antithesis to legality and law cannot afford to validate a forgery. , held that DEPB licences, which were forged and fake documents, were null and void having no effect whatsoever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 (187) E.L.T. A31 (S.C.). Therefore, relying upon the previous decision of the Tribunal in ICI India Ltd. v. Commissioner of Customs, Calcutta, supra, and the decision of the Hon ble High Court confirming the same, we hold that, in the present case where DEPB licences are established to have been forged, since they were never issued by the Licensing Authority, the Commissioner (Appeals) was not justified in up-setting the orders-in-original. 6. It, however, appears from the orders-in-original that the importers have been imposed penalty under Section 112 twice. In the order-in-original, while ordering confiscation of the goods, a penalty of Rs. 20,00,000/- (Appeal No. C/126/03) was imposed under Section 112 of the Act; and simultaneously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a penalty of Rs. 36,49,592/- was imposed under Section 112 of the Act on the ground that the goods were not available for confiscation and again a penalty of Rs. 16,27,486/- was imposed on the importer under Section 112 of the Act at Item No. 6 of that order. 7. It would, however, appear to us that penalty under Section 112 of the Act could not have been imposed in lieu of confiscation of the goods. It is only when the importers are asked to pay fine in lieu of confiscation, that such amount of fine is to be mentioned in accordance with Section 125 of the said Act. We accordingly set aside the penalties imposed in lieu of confiscation under the orders-in-original at Item No. 1, while confirming the penalties imposed under Item No. 7 in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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