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TMI Blog2014 (12) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of acquittal and come to the conclusion that the Tribunal would not follow the decision of the Criminal Court, as in the opinion of the Tribunal the Criminal Court has not gone into the question of mensrea and therefore, the judgment of acquittal would not be accepted by the Tribunal ? 3. Is there a notification under Section 11B of the Customs Act requiring that any trader possessing non-imported silver must also give intimation about the possession of the silver to the Customs Authorities ?'' 3. The learned counsel appearing for the appellants is not pressing the third substantial question of law and therefore, there is no need to discuss about the third substantial question of law. 4. The deceased 1st appellant namely, K.V.Rajagopal filed the Civil Miscellaneous Appeal and during the pendency of the appeal, the 1st appellant died and his legal heirs were brought on record as the other appellants. For the sake of convenience, the deceased 1st appellant is referred to as the appellant hereafter. 5. Brief facts, in a nutshell, are that on 10.11.1992, 35 gold bars weighing 3421.390 gms. valued at Rs. 14,13,034/- and 111 silver bars weighing 855.126 kgs. val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation of 111 silver bars, weighing 855.126 kgs. valued at Rs. 58,96,093/- under Section 111(p) of the Customs Act, 1962. I, however, give an option to redeem the silver on payment of fine of Rs. 6.50 lakhs(Rupees Six Lakhs and Fifty Thousand only) under Section 125 of the Customs Act, 1962. 3. I impose a penalty of Rs. 7.5 lakhs(Rupees Seven Lakhs and fifty Thousand only) under Section 112(b) of the Customs Act insofar as gold is concerned. 4. I impose a penalty of Rs. 1.5 Lakhs(Rupees One Lakh and Fifty Thousand only) under Section 112(a) of the Customs Act, 1962, so far as silver is concerned.'' 8. Aggrieved by the above said findings of the Adjudicating Authority, the appellant again preferred an appeal before the Tribunal. It is also stated that silver bars under seizure were released to the appellant by the office of the 1st respondent during the pendency of the appeal. 9. The main contention of the appellant before the Tribunal is that the appellant has been acquitted by the Judicial Magistrate in the criminal proceedings initiated against the appellant by the Customs Authorities under Section 135(1)(b)(i) of the Act and in the above said judgment, the Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usively found against the appellant by this Tribunal in the earlier round of litigation. What remained to be examined by the Commissioner was whether the statutory intimation under Section 11C of the Customs Act had been given of possession of the silver bars by the appellant to the department. The appellant has admitted that no such intimation had been given. In the circumstances, learned Commissioner rightly ordered confiscation of the goods under Section 111(p) of the Customs Act. The redemption fine imposed in lieu of this confiscation [Rs.6.50 lakhs] cannot be considered to be excessive, having regard to the value of the goods [nearly Rs. 59.00 lakhs]. 10. Coming to the quanta of penalties, however, the appellant seems to have a good case inasmuch as the total of these penalties (Rs.9.00 lakhs) is much higher than the composite penalty (Rs.7.50 lakhs) imposed earlier. In the facts and circumstances of the case, we reduce the penalties under Section 112(b) and Section 112(a) to Rs. 6,50,000/-(Rupees Six Lakhs Fifty Thousand only) and Rs. 1,00,000/-(Rupees One Lakh only) respectively. 11. The impugned order is sustained with modification of the quanta of penalties as above and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the above said gold and silver bars had been physically found kept concealed in the premises of the appellant without intimation to the Department and therefore, the appellant is not entitled to the benefits of findings of the Judicial Magistrate against the penalty imposed by the Commissioner. The learned counsel further pointed out that the adjudication under the Act and prosecution are two independent proceedings and hence, the possibility of different conclusions being reached by two different authorities under the same Act cannot be ruled out and therefore, the factum of acquittal in prosecution proceedings cannot affect findings of fact reached by the adjudicating authority. 15. Admittedly, 35 gold bars and 111 silver bars recovered and seized from the appellant premises on 10.11.1992 and show cause notice was issued on 3.04.1993 for seizure. The Adjudicating Authority has passed an order on 22.01.1995 confiscating the gold and silver and also imposing penalty of Rs. 7.5 lakhs. Thereafter, the appellant went on appeal and the appellate authority remitted the matter to the adjudicating authority for re-adjudication with regard to confiscation of silver and dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating proceedings is correct ? and (ii) Whether the contention of the respondent that the criminal court has not gone into the question of mensrea and in such circumstances, the judgment of acquittal would not affect the finding of the Tribunal is correct ? 19. A perusal of criminal court judgment reveals that the Judicial Magistrate has acquitted the appellant mainly on the grounds that the sanction for prosecution has not been proved by the prosecution and several material witnesses, particularly the Commissioner, who had filed the criminal case has not been examined as witness and also the other important witness one Ganesan, employee of the Customs Department, who prepared the recovery mahazar has not been examined. Therefore, the criminal court has acquitted the appellant, only on doubting the genuineness of the sanction order for prosecution and non-examination of material witnesses before the criminal court. In the above said circumstances, the issue to be considered is whether mere acquittal by Judicial Magistrate in the criminal case would nullify the order of confiscation and imposition of penalty passed by the Customs Authorities, as contended by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ji v. Central Board of Excise and Customs, judgment dated 30-6-1977 has expressed the view in the following words :- "The appellant has raised a point which has emphasised the incongruity that would result if the confiscation of goods and imposition of penalty under Section 112(b) of the Customs Act is permitted to stand when for the same act a prosecution under Section 135(b) has resulted in an acquittal by virtue of the judgment of this Court in CA-389 of 1973. Counsel emphasised that the working of Section 112(b) and 135(b) are identical and that, therefore, the ingredients of the offence, if the misconduct or the act of the appellant can be termed as such, are the same and if it is not established for one purpose, namely, under Section 135(b), it cannot be said to be established for the other purpose under Section 112(b). The argument is certainly interesting and somewhat attractive. But we have to bear in mind that the Act contemplates two separate proceedings for the same act or omission and it is not contended that these two cannot be taken simultaneously, and there is no question of double jeopardy involved. The degree of proof in the case of imposition of punishment by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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