TMI Blog2021 (12) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... and travel documents and regulation of departure from India of citizens of India and to other persons, the same would also include within its domain the impounding and cancellation of such passports. The petition is disposed of with directions to the effect that the impugned order dated 18.11.2021 of the learned CMM, New Delhi to the extent that it directs that the passport of the petitioner cannot be released is set aside. - CRL.REV.P. 401/2021 - - - Dated:- 6-12-2021 - HON'BLE MS. JUSTICE ANU MALHOTRA For the Petitioner : Mr. Shubhankar Jha, Adv. For the Respondent : Mr. Satish Aggarwala, SPP ORDER The reply of the respondent has been placed on record along with rulings relied upon. The petitioner vide the present petition assails the impugned order dated 18.11.2021 of the learned CMM, PHC, New Delhi vide which the prayer made by the applicant seeking release of his passport was declined with it having been observed to the effect that the applicant was a foreign national and the apprehension of the Department of Customs that if the passport was released, he would flee appears to be reasonable as the daily pursuits of him can be done through cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd for matters incidental or ancillary thereto. submitting thus that the Passports Act, 1967 applies not only for the issuance of the passport and travel documents to regulate the departure from India of citizens of India but also for other persons and that these other persons naturally in terms of the Preamble itself are persons other than the citizens of India and would thus apply to foreign nationals as well. It has been submitted on behalf of the petitioner placing reliance on the provision of Section 3 of the Passports Act, 1967, which reads to the effect: 3. Passport or travel document for departure from India No person shall depart from, or attempt to depart from, India unless he holds in this behalf a valid passport or travel document. Explanation.- For the purposes of this section,- (a) passport includes a passport which having been issued by or under the authority of the Government of a foreign country satisfies the conditions prescribed under the Passport (Entry into India) Act, 1920 in respect of the 34 of 1920 class of passports to which it belongs; (b) travel document includes a travel document which having been issued by or under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 108 of the Customs Act, 1962 and had refused to co-operate and asked for a lawyer. It is however averred in para 11 of the reply that when the lawyer of the petitioner came, he tendered his voluntary statement under Section 108 of the Customs Act 1962 in the presence of his lawyer. Reliance has also been placed on behalf of the respondent on the verdict of this Court in Ruhullah Amin Vs. Sh. Amit Kumar Air Customs Officer in Crl.M.C.1661/2021, dated 06.09.2021 in which the petitioner thereof had challenged the order of the learned CMM dated 01.02.2021 whereby the petitioner therein had been granted permission to go to Afghanistan, which was subject to certain condition of deposit of ₹ 13 lacs as redemption fine and fine of ₹ 9 lacs as personal penalty against which the Rev.Pet. No.196/2021 was dismissed vide order dated 25.06.2021 assailed in Crl.M.C.1661/2021 and that it was observed vide para 4 of the same, that though there was an error in the noting of the learned CMM with regard to the redemption amount and penalty amount and the petitioner would be required to deposit the penalty of ₹ 13 lacs and redemption fine of ₹ 9 lacs in as much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 35F of Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, shall be taken during the pendency of appeal where the party/ assessee shows to the jurisdictional authorities; (i) proof of payment of stipulated amount as pre-deposit of 7.5% / 10%, subject to a limit of ₹ 10 crores, as the case may be; and (ii) the copy of appeal memo filed with the appellate authority. 4.3 Recovery action, if any, can be initiated only after the disposal of the case by the Commissioner (Appeal)/ Tribunal in favour of the Department. For example, if the Tribunal decides a case in favour of the Department, recovery action for the amount over and above the amount deposited under the provisions of Section 35F/ 129E may be initiated unless the order of the Tribunal is stayed by the High Court/ Supreme Court. The recovery, in such cases, would include the interest, at the specified rate, from the date duty became payable, till the date of payment. submitting to the effect that in terms of clause 4.2 of the said circular, no coercive measures for the recovery of the balance amount i.e. amount in excess of 7.5% or 10% deposited in terms of Section 35F of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (two months) from his family comprising his aged parents, wife and children who are totally dependent on him and that there was no condition whatsoever imposed on the petitioner at the time of grant of bail that the passport of the petitioner would be taken or impounded. As regards the submission that has been made on behalf of the Customs Department that in equity, it is imperative for the petitioner to deposit the amount of penalty imposed vide the adjudication order dated 17.11.2021, it has been submitted on behalf of the petitioner that without prejudice to the rights and contention that the petitioner may raise in the appeal that the petitioner seeks to file against the adjudication order dated 17.11.2021, for which there is still time to file in terms of Section 128(1) of the Customs Act, 1962, the petitioner would be ready to deposit the entire penalty amount of ₹ 7 lacs despite the condition of 7.5% only required to be deposited in terms of Section 129E of the Customs Act, 1962. On a consideration of the submissions that have been made on behalf of either side, taking into account the factum that the verdict relied upon on behalf of the respondent in Air Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf of the respondent that the verdict in Suresh Nanda (Supra) would not apply to the facts and circumstances of the instant case in as much as the passport issued to Suresh Nanda was by the Government of India and that the petitioner herein is a Russian national and thus the provisions of the Passport Act, 1967 would not apply, as rightly contended on behalf of the petitioner, the preamble to the Passports Act, 1967 itself makes it applicable for the issuance of passports and travel documents to regulate the departure from India of citizens of India and for other persons and for matters incidental or ancillary thereto with Section 3 thereof making it apparent through the Explanation provided thereto to the definition of passport and travel documents therein that it would apply even to such passport or travel document issued by or under the authority of the Government of a foreign country satisfying the conditions prescribed under the Passport (Entry into India) Act, 1920. Taking into account the factum that the Passports Act, 1967 has itself been legislated inter alia to regulate matters incidental or ancillary to the issuance of passports and travel documents and regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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