TMI Blog2023 (12) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... cy is that respondent was not cooperating with the investigation proceedings. The ongoing investigation cannot be ground for the denial of right to the provisional release of seized goods conferred on the respondent by the Customs Act, 1962. It seems that the Additional Commissioner, while passing this order has not acted as quasi judicial authority but an agent of investigating team of DRI officers and have instead of implementing the rule of law has decided to implement the will of the investigating authorities. Such an approach or interference in quasi judicial functioning by the investigating authorities is totally uncalled for and is condemned. It is not understood as to how officers responsible for implementing a Central Law - Customs Act, 1962, holding high positions of Commissioner in the justice delivery system as per the Act, ibid, direct contrary to the provisions of the law as have been interpreted by the Higher Judicial Forums including the Jurisdictional High Court. The appeal filed itself goes contrary to the principles of judicial discipline which are so sacrosanct for establishing rule of law. It is directed that copy of this order should be given to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle, Tata Harrier bearing registration no. UP 63 AP 1819 and recovered 15 pieces of foreign origin gold weighing 2,297.840 grams, being smuggled from Bangladesh. Shri Vibhore Rastogi in his statement dated 06.07.2022 under Section 108 of the Customs Act, 1962 stated that the said gold was meant for delivery to the appellant. A search was conducted at the premises of the appellant on 06.07.2022 resulting in recovery of 180 kgs (approx.) foreign origin silver and cash Rs.1,21,00,000/- were seized. Appellant in his statement dated 07.07.2022 admitted to acquaintance of Shri Vibhore Rastogi and delivery of consignment of foreign origin gold to him on previous occasions. 2.2 On the basis of statement of appellant another follow up search was carried out at the premise of brother of the appellant resulting recovery of 120 Kgs (approx.) foreign origin silver. 2.3 Appellant vide letter dated 02.09.2022 requested for provisional release of 300 kgs (approx.) silver and cash Rs.1.21 crores. Joint Director, DRI, Lucknow informed vide letter dated 11.10.2022 that investigation in the matter is underway and the appellant was involved in illegal possession of 301 Kgs. (approx.) foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money is the sale proceeds of the smuggled gold and has been correctly seized under Section 110 of the Customs Act, 1962. ii. The Commissioner (Appeals) has relied upon the case of Ramchandra Vs Collector of Customs reported in 1992 (60) ELT 277 and held that as per records of the case none of the ingredients as exist in this case. The findings of Commissioner (Appeals) is not correct and unacceptable as the Commissioner (Appeals) as all above four conditions as held by the Hon'ble Tribunal were satisfied in the present case. These four conditions are - a. there was a sale, which was illegal; b. the sale was of smuggled gold and illegally procured foreign origin silver; c. the buyer and seller were having the knowledge that they are dealing with smuggled silver gold; d. the buyer and the seller have accepted that they were actively involved in the smuggling activity in the case of foreign origin gold whereas in the case of foreign origin silver the applicant provided incorrect address of supplier. iii. It has been mentioned by the appellant authority that the cash book register has been verified by the CA M / s Anchal Rastogi, therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nomic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest..... viii. The adjudicating authority, while holding the goods as prohibited, based on the decision of the Hon'ble Supreme Court in the case of Om Prakash Bhatia v. CC reported at 2003 (155) ELT 423 (SC), has decided not to give an option to the Appellant to redeem the goods on payment of fine. From the scrutiny of the said decision of the Hon'ble Supreme Court, it emerges that the Hon'ble Court was interpreting the scope of expression prohibition' used in Section 111 of the Customs Act, 1962, and held that this expression 'prohibition' also includes all types of 'restriction' and hence confiscation is valid even in the case of the restric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the respondent by the Customs Act, 1962. It seems that the Additional Commissioner, while passing this order has not acted as quasi judicial authority but an agent of investigating team of DRI officers and have instead of implementing the rule of law has decided to implement the will of the investigating authorities. Such an approach or interference in quasi judicial functioning by the investigating authorities is totally uncalled for and is condemned. The quasi judicial function ask for application of judicial mind to the issue in hand. If respondent was not cooperating with the investigation appropriate action as provided in law should have been taken by the authorities responsible, might be they are ignorant of the law in this regard. Commissioner (Appeal) has considered the issue purely on the basis of judicial principles and the decided the appeal on the basis of the judicial precedence available. Revenue/ Committee of Commissioners seem to be aggrieved by the judicial application of mind by the Commissioner (Appeal) in the issue raised before him in the appeal filed before him. 4.5 We note that this issue has been considered by the Tribunal in the case of Mayank Agarwal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2.2022. Sri Digvijay Nath Dubey, appearing for opposite party does not have any objection to the prayer. Accordingly, we hereby direct the Commissioner of Customs (Preventive) to deal with the petitioner's objections against the show cause notice dated 2.11.2021 and finalize the same by passing a reasoned and speaking order expeditiously, preferably, within a period of two months from the date of production of a copy of this order alongwith the application. It is made clear that this Court has not dealt with the issue at hand on merits. The writ petition is accordingly disposed of. Looking to the fact that the objections have already been filed before the competent authority in so far as the seizure of the gold is concerned, the order passed by the Tribunal assailed on the ground urged before us has lost its relevance. The release of the seized gold, however, is bound to be secured against an adequate bank guarantee. The Tribunal having considered the matter has already directed the respondent to furnish bond for full value of the seized gold. We hereby affirm the first condition imposed by the Tribunal. In so far as the release of gold on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legal Mission to Reduce Average Pendency Time from 15 Years to 3 Years and this document is called National Litigation Policy . The vision/mission of the National Litigation Policy is as follows: 1. The National Litigation Policy is based on the recognition that Government and its various agencies are the pre-dominant litigants in courts and Tribunals in the country. Its aim is to transform Government into an Efficient and Responsible litigant. This policy is also based on the recognition that it is the responsibility of the Government to protect the rights of citizens, to respect fundamental rights and those in charge of the conduct of Government litigation should never forget this basic principle. EFFICIENT LITIGANT MEANS Focusing on the core issues involved in the litigation and addressing them squarely. Managing and conducting litigation in a cohesive, coordinated and time-bound manner. Ensuring that good cases are won and bad cases are not needlessly persevered with. A litigant who is represented by competent and sensitive legal persons: competent in their skills and sensitive to the facts that Government is not an ordinary litigant and that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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