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2016 (5) TMI 390 - MADRAS HIGH COURT

2016 (5) TMI 390 - MADRAS HIGH COURT - 2016 (338) E.L.T. 214 (Mad.) - Legality and correctness of impugned order - Petitioner placed heavy reliance on the contents of Circular No.27/2015-Customs dated 23.10.2015 and pleaded that the communication sent to the Customs Officials reference to the dropping of Criminal Proceedings pending against the accused committed offences in case of baggage and outright smuggling cases and in case of appraising cases and commercial frauds. - Held that:- it is .....

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rt. Also, the Petitioner had not availed a valuable/ reasonable opportunity of being heard before adjudication wherein admittedly, a penalty of ₹ 1,50,000/- was imposed upon the Petitioner. As such, in view of the aforesaid divergent stand taken by the respective parties in regard to the valuation of the goods smuggled by the Petitioner in India in the subject manner in issue and also as to the applicability of the Circular No.27/2015-Cus, this Court, in the interest of Justice, Fair Play, .....

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5 passed by the Learned Additional Chief Metropolitan Magistrate, EO-1, Emgore, Chennai. 2.The Learned Additional Chief Metropolitan Magistrate, EO-1, Egmore, Chennai, while passing the impugned order in Crl.M.P. No.3808 of 2015 dated 11.03.2016 in R.R.No.22 of 2009 (filed by the Petitioner/Accused), at paragraph 5, had observed as under: 5. Point:- "This petition is filed by the Petitioner to drop the proceedings. The counsel for the petitioner stated that he was arrested by the respondent .....

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ptable method of valuation and if the respondent valued the goods properly it would be below 20 lakhs. The Union Ministry of Finance on 23.10.2015 vide circular No.27/2015 communicated the customs officials to drop the criminal proceedings pending against the accused committed offence to the value of ₹ 20 lakhs in case of baggage and outright smuggling cases and ₹ 1 crore in case of appraising cases and commercial frauds. On perusal of the above circular the petitioner is falling und .....

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intainable and deserves to be dismissed. Therefore considering both side arguments, the petitioner has no locus standi to file the petition to drop the proceedings. If at all the petitioner is aggrieved by the pendency of the R.R.No.23/2009 he has to approach the Hon'ble High Court to quash the proceedings. It is true that the complainant only can file a petition to drop the proceedings as per the Union of Ministry of Finance on 23.10.2015 vide circular No.27/2015 Customs and the petition is .....

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cording to the Learned Counsel for the Petitioner, the trial Court had not appreciated the decision rendered by the Hon'ble Supreme Court in K.M.Mathew V. State of Kerala reported in 1992 AIR 2206 wherein it was mentioned that the Magistrate can very well drop the proceedings at the instance of Accused persons. Therefore, it is represented on behalf of the Petitioner that the view of the trial Court that prosecution alone could file a petition to drop the proceedings is quite contrary of Law .....

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no way bind the parties facing criminal prosecution as per decision of the Hon'ble Supreme Court of India in Radhey Shyam Kejriwal V. State of West Bengal reported in (2011) 3 SCC 581. Also, the stand of the Petitioner is that the 'criminal prosecution' and 'adjudication proceedings' are independent in character. 7. Lastly, it is the submission of the Learned Counsel for the Petitioner that the Respondent/Prosecution's objection is that the Petitioner had failed to pay p .....

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laced for the reasons advanced by the learned Advocate, as mentioned above, namely:- 1) The document is unsigned. 2) It is not known as to who has introduced the said document on the internet, and 3) What is the nature of price indicated in the said document, whether it is a retail price or a wholesale price. In short, the document displayed on the Internet is not worthy of reliance. It is doubtful whether this document can at all be taken as the computer print out fulfilling the conditions of s .....

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assertion. 9. Conversely, it is the contention of the Learned Special Public Prosecutor for the Respondent that the Tamil Nadu Government issued a Detention Order under COFEPOSA Act, 1974 vide G.O.S.R.No.1/570-2/2009 dated 14.10.2009 against the Petitioner and since he was absconding, the same was notified by the Secretary to Government of Tamil Nadu as per Order in G.O.No.S.R.1/570-9/2009 dated 06.12.2009 and the same was published in the Tamil Nadu Government Gazette No.50 dated 23.12.2009. Al .....

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. 11. The Learned Special Public Prosecutor for the Respondent projects an argument that in the instant case (O.S.No.5/2010-INT), the market value of the goods smuggled by the Petitioner was approximately ₹ 31.83 lakhs and in fact, the valuation of smuggled goods at ₹ 21,22,150/- as per the Order-in-Original No.12/2010-ADC (Air) was not merely a mechanical replication of the internet prices of the smuggled goods, but an abatement of 40% was allowed towards Duty and Profit, that too o .....

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3. The Learned Special Public Prosecutor for the Respondent projects a plea that if the Petitioner was really aggrieved against the Order-in-Original No.12/2010-ADC(Air) passed by the Additional Commissioner of Customs, Airport & Air Cargo Complex, Chennai, then, there is a remedy for him to prefer Appeal before the Commissioner of Customs (Appeals) within the specified time limit. However, the Petitioner had not filed the Appeal in question and therefore, the order in Reference No.12/2010-A .....

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preferring of complaint or withdrawal of prosecution. In effect, the categorical stand of the Respondent is that the Petitioner/Accused cannot seek for 'Withdrawal of Prosecution' as a matter of right and it is very well open to the sanctioning authority to proceed in terms of the Circular No.27/2015-Customs dated 23.10.2015. 15. The Learned Special Public Prosecutor for the Respondent contends that the CBEC Circular No.996/3/2015- CX dated 28.02.2015 relied on by the Petitioner relates .....

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is case. 16. As far as the present case is concerned, the Petitioner places heavy reliance on the contents of Circular No.27/2015-Customs dated 23.10.2015 and takes a plea that the communication sent to the Customs Officials reference to the dropping of Criminal Proceedings pending against the Accused committed offences to the value of ₹ 20,00,000/- in case of baggage and outright smuggling cases and ₹ 1 crore in case of appraising cases and commercial frauds. 17. In the present case .....

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goods available on the internet. 18. In this connection, this Court very pertinently pointed out that in the decision 2000 (117) E.L.T. 53 (Tribunal) cited on behalf of the Petitioner, it is clearly observed that the document displayed on internet is not reliable being unsigned and nature of price not being indicated therein. 19. It is to be pointed out that in the case of Assistant Collector of Customs V. L.R.Malani, 1999 (110) E.L.T. 317, the Hon'ble Supreme Court has held that 'Depart .....

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f the Act is that an Accused must have acquired possession or carried, deposited, harboured, kept, concealed, sold or purchased or in any other manner dealt with any goods which he knew or had reason to believe were liable to confiscation under Section 111, in the considered opinion of this Court. Further, the offence under Section 135 of the Act is a compoundable one in terms of Section 137 (3) of the Customs Act. 21. As far as the present case is concerned, even though on the side of the Respo .....

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valuation of the smuggled goods at ₹ 21,22,150/- were not furnished on the side of the Respondent before this Court. Also, the Petitioner had not availed a valuable/ reasonable opportunity of being heard before adjudication of O.S.No.5 of 2010 wherein admittedly, a penalty of ₹ 1,50,000/- was imposed upon the Petitioner. As such, in view of the aforesaid divergent stand taken by the respective parties in regard to the valuation of the goods smuggled by the Petitioner in India in the .....

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