TMI Blog2012 (10) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... th the prayer that the adjudicatory order dated 7-5-1996 passed by Commissioner Customs and Central Excise, Jaipur and the judgment dated 23-6-2000 passed by Customs Excise Gold (Control) Appellate Tribunal (for short-CEGAT) be set aside and further prayer has been made for issuance of writ of mandamus or writ of certiorari directing the respondents to return 294 silver ingots weighing 252.177 kgs valued at Rs. 17,88,944/- to the petitioner. 2. Factual matrix of the case is that the Customs and Central Excise Officers, Pali intercepted one Maruti Van during the night intervening 26-9-1992 and 27-9-1992 at 10.00 PM. Two persons, namely Ayub Khan and Mohammad Illayas, were found occupying the van at the time of interception. On search of the Maruti van, 8 gunny cloth bags containing 294 silver chaurasas were found. The Maruti Van was taken to the Police Station, Pali. Silver chaurasas were formally recovered by the police, however, subsequently they were handed over to customs authorities. A criminal complaint for offence u/s. 135 of the Customs Act was filed against 14 persons including the present petitioner in the court of Special Magistrate, Economic Offences, Jodhpur. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-department was allowed in part by the Additional Sessions Judge No. 2, Jodhpur vide his judgment dated 14-5-2003. It is thereupon that the present writ petition was filed by the petitioner on 19-8-2003. It is contended that even in the writ petition filed in 2003, petitioner could question legality and validity of the confiscation order dated 7-5-1996 because this order suffers from numerous illegalities. Learned counsel submits that according to Section 11B of the Customs Act, confiscation could be made only of such goods, which were notified by the Central Government on satisfaction that it is expedient in the public interest to take special measures for the purpose of checking illegal import, circulation or disposal of such goods. Silver at the relevant time was not notified as such. Under chapter IVA and IVB of the Act, silver was noticed under Section 123 of the Customs Act vide notification dated 8-6-1990, followed by a clarificatory notification dated 11-6-1990 from the Finance Secretary, Government of India, New Delhi saying that silver which did not bear foreign mark, was not required to be seized. In the present case, the silver that was seized did not at all bear any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onents of principles of natural justice. In this connection, learned counsel relied on a recent judgment of Supreme Court in Kranti Associates Pvt. Ltd. Anr. v. Masood Ahmed Khan Ors. - (2010) 9 SCC 496 = 2011 (273) E.L.T. 345 (S.C.) and argued the orders of the adjudicating authorities as well as Tribunal are totally lacking in reasons. It is further argued that the order passed by the revision court in the criminal case to the extent it set aside the order for return of silver to the petitioner is contradictory in terms because in earlier part of the order, the learned Additional District Judge has upheld the finding recording by the learned Special Magistrate while discharging the petitioner on the basis of his satisfaction that the silver was not having any foreign mark so as to attack the provisions under the Customs Act, in later part, however, the said court has upheld the order of discharge. Such an order therefore cannot be relied by the respondents for not returning the silver to the petitioner. 7. Learned Senior counsel also argued that statement recorded u/s. 108 being inadmissible in evidence could not be relied by the department to confiscate the seized silver. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has thus attained finality. The writ petition be therefore dismissed. 9. We have given our anxious consideration to rival submissions and perused the material on record. 10. Petitioner in the present case has directly challenged the order of confiscation dated 7-5-1996 while simultaneously challenging the order of the CEGAT dated 23-3-2000. Although the order dated 7-5-1996 was a composite order directing confiscation of the silver as also imposing penalty on 14 persons including the petitioner but the petitioner for the reasons best known to him merely challenged that part of this order before the CEGAT by which penalty of Rs. 50,000 was imposed upon him. This would mean that the petitioner accepted the order regarding confiscation as valid, whereas according to Section 129A clause (a), the order passed by the Commissioner of Customs as adjudicating authority is appealable before the Tribunal. Even when the Tribunal partly accepted the appeal filed by the petitioner against the order of penalty and reduced the amount of penalty from Rs. 50,000/- to Rs. 30,000/- by order dated 23-6-2000, petitioner had the remedy of getting a reference made to this Court under Section 130A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as under : 29. By referring to the aforesaid schemes under different statutes, this Court wants to underline that the right of appeal, being always a creature of a statute, its nature, ambit and width has to be determined from the statute itself. When the language of the statute regarding the nature of the order from which right of appeal has been conferred is clear, no statutory interpretation is warranted either to widen or restrict the same. 30. The argument that writ jurisdiction of the High Court under Article 226 of the Constitution is a basic feature of the Constitution and cannot be ousted by parliamentary legislation is far too fundamental to be questioned especially after the judgment of the Constitution Bench of this Court in L. Chandra Kumar v. Union of India - (1997) 3 SCC 261. However, that does not answer the question of maintainability of a writ petition which seeks to impugn an order declining dispensation of pre-deposit of penalty by the Appellate Tribunal. 31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner. Even on the question of penalty, the petitioner did not avail the remedy of getting the reference made to this Court under Section 130A of the Act. Petitioner has also not challenged the order passed by learned Additional District Judge by which the directions issued by the learned Special Magistrate, Economic Offences to the respondents to return the seized/confiscated silver was set aside. Petitioner has thus by his own action/inaction, while not questioning correctness of the confiscation order as also the order passed by the learned Additional District Judge, accepted those orders as valid, which orders have even otherwise became final. In these facts, petitioner cannot be held to be entitled to the relief prayed for. 14. Even if we test the strength of petitioner s arguments alternatively on merits, we find that Supreme Court in Tukaram G. Gaokar v. R.N. Shukla Ors. - AIR 1968 SC 1050 held that the power of levy of penalty and confiscation under Sections 111 and 112 of the Customs Act is vested only in customs authorities and criminal court cannot make its adjudication. The customs officials are competent to confiscate the goods and levy penalty on the persons c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 24 of the Evidence Act. 17. In Shambhu Dayal Agarwala v. State of West Bengal Anr. - (1990) 3 SCC 549, it was held by Supreme Court in the context of Section 6A of the Essential Commodities Act, 1955 that the confiscation of essential commodities is not in lieu of punishment but can be in addition to the penal consequences. Breach of the order made under Section-3 attracts penal consequence i.e. imprisonment or fine and also renders the property seized liable to confiscation. The Act separately in Section 6A provides for seizer or confiscation of the property after following requirement of Section 6-B and so long as the prosecution remains pending, the Collector/Additional Collector could not direct release of the seized goods. 18. In our considered view also, the adjudicating proceedings under Section 111 are entirely different in their scope, where required standard of proof is also of lesser degree than the one in criminal trial for the alleged offence wherefor the offence shall have to be proved by the standard of proof beyond reasonable doubt. Even if the petitioner and other accused have been discharged by the criminal court, which order has been even upheld by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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