TMI Blog2007 (2) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... d 22-1-1995 confiscated the above goods absolutely and imposed a penalty of Rs. 7.50 lakhs on the appellant. The party preferred appeal to this Tribunal against the said order and this Bench, in Final Order No. 76/2000 dated 11-1-2000, [2000 (125) E.L.T. 777 (T)] held that (a) the appellant was entitled to the benefit of doubt regarding whether the silver bars were of foreign origin; (b) the confiscation of the said goods was justifiable as the same was a notified item; (c) but an option was available to the claimant for redemption of the goods; (d) instead of a consolidated penalty in relation to both gold and silver, separate penalties required to be imposed on the party, and (e) as the party had not contested the seizure of gold bars, absolute confiscation of the item by the adjudicating authority was sustainable. The Tribunal, accordingly, remanded the case to the Commissioner for fresh disposal in relation to the silver bars. 2. Pursuant to the Tribunal s remand order, learned Commissioner of Customs passed the following order:- 1. I order absolute confiscation of 35 gold bars weighing 3421.390 gms. valued at Rs. 14,13,034/- under Section 111(d) of the Customs Act, 1962. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct of the former in relation to the gold bars. As regards penalty of Rs. 1.50 lakhs imposed by the Commissioner on the appellant for his conduct in relation to the silver bars, learned counsel submitted that this penalty also was liable to be set aside inasmuch as the silver bars had not been shown to have been smuggled by the appellant. It was also pointed out that the sum of the two penalties imposed on the appellant by the Commissioner in the impugned order was higher than the composite penalty imposed by the authority in its earlier order. Learned counsel also argued for a lesser redemption fine in respect of the silver bars. 5. Learned SDR argued that the department was not required to prove its case with mathematical precision and that they could prove it by establishing such a degree of probability that a prudent man might, on its basis, believe in the existence of the facts in issue. Learned SDR submitted that, in the instant case, the department had established, in the above manner, that the appellant had illicitly acquired possession of the silver bars and concealed the same beneath the ground without giving such intimation to the department as required under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation and penalty resulting from adjudication could not be allowed to stand in the face of an order of acquittal passed by the criminal court on the same set of facts and evidence. 7. After a perusal of the Judicial Magistrate s judgment acquitting the appellant of the charge framed against him under Section 135(1)(b)(i) of the Customs Act, we find that the issue considered by the Judicial Magistrate was whether the charge put forward against the accused has been proved beyond any reasonable doubt or not? Though any charge was not formulated by learned Judicial Magistrate, it appears from para (1) of his judgment that the appellant was accused of having imported the gold and silver bars from foreign countries, without proper permit and of having concealed the same for the purpose of cheating the Customs department. This charge was apparently framed under Section 135(1)(b) of the Customs Act. The punishment proposed in the charge sheet was the one prescribed under sub-clause (i) of clause (b) of sub-section (1) of Section 135. Under this provision, if any person acquired possession or was in any way concerned in carrying, removing, depositing, harbouring, keeping, conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bars were already upheld by the Tribunal in the earlier round of litigation and that decision was not challenged by the appellant. In the impugned order, the Commissioner held the appellant liable to penalty under Section 112(b) for having kept/harboured the gold bars. Insofar as the silver bars were concerned, it had already been held by the Tribunal in the earlier round of litigation that the item was one notified under Section 11B of the Customs Act and therefore the appellant was liable to give intimation of possession thereof to the department under Section 11C of the Act. The Commissioner found that, admittedly, no such intimation had been given by the appellant. On this basis, the appellant was held liable for penalty under Section 112(a) of the Act. 8. We are unable to hold that learned Judicial Magistrate had acquitted the appellant under Section 135(1)(b)(i) of the Customs Act on the same set of facts and evidence as that considered by the Commissioner in the adjudication proceedings. The complexion of evidence considered by the Judicial Magistrate is different from the one examined by the Commissioner. As already noted, the crucial aspect of mens rea was not even adver ..... X X X X Extracts X X X X X X X X Extracts X X X X
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