TMI Blog2008 (1) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... lted in total exoneration, there is some other independent evidence, not considered in the adjudication proceedings, on the basis of which the conviction could be obtained in the criminal court, then and only then can it be said that the findings of the departmental/adjudication proceedings will not bind the criminal court. If there is no other independent evidence and on the very same material which forms the basis of the prosecution there has been exoneration in the departmental proceedings, which has attained finality, then it will be futile to keep the criminal proceedings on the same material pending in the criminal courts - criminal proceedings were launched simultaneously and departmental proceedings ended in exoneration long after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in medicines all of foreign origin valued at Rs. 1,31,45,000/-. Alleging that there was a misdeclaration of the goods and therefore a fraudulent evasion of customs duty, the Customs initiated proceedings both departmentally as well as in the criminal court. A show cause notice dated l8th February 1999 was issued under Section 124 of the Customs Act, 1962 to which the Petitioners replied. Meanwhile a complaint dated 19th May, 1999 was filed in the court of the learned ACMM for the of- fences under Sections 132 and 135(1)(a) of the Customs Act, 1962. 3. The Commissioner of Customs on 4th May, 2000 disposed of the show cause notice by holding that the Petitioners were not entitled to the benefit of the exemption. Accordingly an order was pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the criminal prosecution that the Petitioners were not entitled to the exemption has been conclusively negatived by the CEGAT, and its order has been upheld by the Supreme Court. It is submitted that consequently there is no question of the Petitioners being prosecuted for the offences of misdeclaration of goods or evasion of customs duty in terms of Section 132 or 135(1)04 of the Act. 6. The point regarding exoneration in departmental proceedings and the consequent unsustainability in law of the criminal proceedings launched simultaneously has been discussed extensively in earlier judgments of both the Supreme Court as well as of this Court. In Surkhi Lal after discussing the judgments of the Supreme Court in the Assistant Collecto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendent in nature. 2. The findings in the departmental proceedings would not amount to resjudicata and initiation of criminal proceedings in these circumstances can be treated as double jeopardy as they are not in the nature of prosecution". 3. in case adjudication proceedings are decided against a person who is facing prosecution as well and the Tribunal has also upheld the findings of the adjudicators/assessingauthority, that would have no bearing on the criminal proceedings and that criminal proceedings are to be determined on its own merits in accordance with law, uninhibited by the findings of the Tribunal. It is because of the reason that in so far as criminal action is concerned, it has to be proved as per the strict standards fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility when it is stated in the departmental proceedings that ex-facie there is no such violation. The yardstick would, therefore, be to see as to whether charges in the depart mental proceedings as well as criminal complaint are identical and the exoneration of the concerned person in the departmental proceedings is on merits holding that there is no contravention of the provisions of any Act.' (emphasis supplied) 8. More recently this Court held likewise in Kamal Suri v. Dy. Director, Enforcement Directorate (CRL.M.C. 2655/2006 decided on 11th January. 2008) while quashing the criminal proceedings launched simultaneously with adjudication proceedings under the Foreign Exchange Regulation Act. 9. Mr. Satish Aggarwala, learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the observations Standard Chartered Bank to the effect that the finding in adjudication proceedings are not to be viewed as binding and conclusive on the criminal proceedings, while not overruling the earlier judgments Uttam Chand and PS Rajya v. State of Bihar - (1996) 9 SCC 1, as meaning this: if the Department is able to show the court that irrespective of the departmental/adjudication proceedings which have resulted in total exoneration, there is some other independent evidence, not considered in the adjudication proceedings, on the basis of which the conviction could be obtained in the criminal court, then and only then can it be said that the findings of the departmental/adjudication proceedings will not bind the criminal court. If th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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