TMI Blog2008 (4) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... is case are that on the basis of specific information, the officers of Directorate of Revenue Intelligence (DRI) intercepted the petitioner Ajay Gulati while he was entering security lounge at departure hall of I.G.I. Airport, New Delhi on the night intervening 11/12 th August, 2002. He was scheduled to travel by Flight No.TG-316 for Bangkok. As a result of detailed examination of his bag as well as his personal search, 4,500 U.S. dollars were recovered from the personal search of the petitioner while from his baggage 15,000 (Traveler s Cheque) U.S. dollars were recovered. 3. On enquiry, petitioner Ajay Gulati explained the recovery of U.S.$ 4,500 from his personal possession as amount brought by him on his arrival from Hong Kong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch US$ 2,000 and 27,000 US$ (Travelers cheque) each were recovered from their possession. In the absence of any true and proper declaration and any legal acquisition/possession of the Traveler s cheque and US Dollars recovered from the petitioners Kapil Rai and Jatin Kapoor, the adjudicating authority ordered absolute confiscation of the same. The adjudicating authority imposed a penalty of Rs.5 lacs each upon both the petitioners. Aggrieved by the order of adjudicating authority, appeals were filed by the petitioner Kapil Rai and Jatin Kapoor before Commissioner of Customs (Appeals). However, their appeals were dismissed. Thereafter, both the petitioners filed revision petition under Section 35EE of the Central Excise Act, 1944. Vide im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recorded in adjudication proceedings shall have the direct bearing on the criminal prosecution and in case the petitioners have been discharged and absolved under the adjudication proceedings on merits, no purpose would be served by continuing the criminal prosecution on the same set of allegations. The reason being, if on the same evidence, a lower standard of proof required in adjudication proceedings has not been achieved, higher standard of proof required in a criminal trial would be incapable of being achieved. 10. Learned counsel for the petitioners in support of his contentions has cited following judgments:-Bhavnesh Kumar vs. Union of India and Ors., Crl.M (M) 2139/91 decided on 31.7.1992, G.L. Didwania vs. Income Tax Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nta Rao vs. State of Andhra Pradesh 2000 (122) ELT 7 (A.P.). 12. A somewhat similar question arose in recent case decided by this Court in Crl.M.C.No.938/05, M/s. Bihariji Mfg. Co. P. Ltd. vs. Commissioner of Central Excise (supra). 13. In that case, the allegations against the petitioners were that they indulged in clandestine removal of manufactured goods exceeding rupees one crore and the petitioners were liable to pay excise duty. The adjudicating order was passed against the petitioners by Commissioner of Central Excise. Aggrieved against that order they preferred appeals to the Customs, Excise and Service Tax Appellate Tribunal and the Tribunal allowed the appeals and held inter-alia that no materials were produced nor was there an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s concerned, it has to be proved as per the strict standards fixed for criminal cases before the criminal court by producing necessary evidence. 4. In case of converse situation namely where the accused persons are exonerated by the competent authorities/Tribunal in adjudication proceedings, one will have to see that reasons for such exoneration to determine whether these criminal proceedings could still continue. If the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. If, on the other hand, the exoneration in the adjudication proceedings is on merits and it is found that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner fastened liability upon the petitioners, those findings were reversed by the Tribunal, which categorically and unambiguously recorded that there were no materials recovered to prove the charge of clandestine removal, or that evasion of duty stood established. In these circumstances, I am of the opinion that on application of the rule enunciated in Sunil Gulati s case, (particularly, the latter portion of proposition (4) quoted above, i.e. exoneration of the assessee being on merits, and not on a technicality) further proceedings in the criminal complaint would not sub-serve ends of justice. 15. Similarly, when the highest Appellate Authority in the present case has also absolved these petitioners on merits, no useful purpose wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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