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2019 (7) TMI 466 - HC - CustomsSmuggling - Gold - waiver of penalty u/s 112(b) of Customs Act - acquittal of the appellant passed by a criminal court giving the benefit of Doubt - launching of prosecution of Section 135(1)(b) of the Act - HELD THAT:- Clause (b) of Section 112(b) and Section 135(1b) of the Act unambiguously requires the acquiring of possession by the person concerned of the goods, which are liable to confiscate under Section 111 of the Act. Two consequences follow upon these ingredients be found available. One is imposition of penalty under Section 112(b) of the Act, another is prosecution in the Criminal Court, which may result in an imprisonment. There is no dispute before us that on the same set of facts and evidence, the concerned Criminal Court has already acquitted the respondents before us giving them the benefit of doubt. The appeal filed by the Revenue/prosecution against such acquittal has also failed. The learned counsel for the Revenue could not point out any additional evidence or material available with the Revenue other than the one, which was considered by the Courts with regard to the prosecution of Respondents under Section 135 of the Act. The reason of such double jeopardy to be avoided is obvious, even though the two proceedings may operate in different fields and may have different nature. The Departmental proceeding on civil side, which is based on preponderance of probability premise based, whereas on the criminal side, it is the proof beyond the reasonable doubt, which forms the basis of conviction or acquittal, are different but the distinguishing feature to allow the two proceedings to go ahead parallely is that the different set of facts and evidence should be available before the concerned authorities proceeding in two parallel proceedings. The same principles would apply in a taxing statute like the Customs Act, 1962, also because the ingredients sought to be satisfied for imposition of penalty as well as for prosecution of the concerned accused persons is same and identically worded, as it would appear from the quotation of the two provisions. In the absence of any additional or further material with the Revenue, we do not find any error committed by the learned Tribunal to set aside the penalty under Section 112 (b) of the Act on the basis of the order of acquittal by the concerned trial court below - Penalty rightly set aside. Appeal dismissed - decided against Revenue.
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