TMI Blog2023 (12) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused as not guilty and they were acquitted under Section 248(1) of CrPC. It is to be seen whether the evidences on record would require imposition of penalty under Section 114 of the Customs Act, 1962. The evidences as produced in the impugned order are in the form of statements of Mr. Somasundaram, wherein it was stated that he had got a call from Mr. C. M. Abdul Razak late in the night informing him that his man was caught by the Customs at the Airport while trying to smuggle out foreign currencies and he also informed him to contact Mr. Aslam at Dubai - The same set of facts were before the Trial Court, based on which it was held that there is nothing incriminating in the statement of Mr. Mujeeb Rehman incriminating Mr. C.M. Abdul Razak and there was no direct evidence against other accused including the appellant. In the case of S. DURAIAPPA VERSUS COMMISSIONER OF CUSTOMS, CHENNAI [ 2005 (9) TMI 204 - CESTAT, CHENNAI] wherein the question here arose whether on the same set of facts and evidences when the prosecution initiated by the customs authorities under Section 135 of the Customs Act, 1962 had resulted in an acquittal giving them the benefit of doubt at the ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to be untouched. Accordingly, he proceeds with the involvement of Mr. C. M. Abdul Razak in concealing the foreign currency. After verifying the documents and statements, the Commissioner imposes a penalty of Rs.10,00,000/- on the appellant. The appellant is in appeal against this impugned order. 2. The learned counsel on behalf of the appellant submits that on the very same set of facts which was the subject matter of adjudication, the appellant was prosecuted along with others for the alleged offences under Section 135 of the Customs Act, 1962. The Trial Court on merits found no material to connect the appellant to the seizure and has passed an order of acquittal which has become final. Therefore, it is claimed that if the Criminal Court acquits the appellant on the same set of facts, the Commissioner cannot impose penalty. 3. It is further submitted that the entire case of the Revenue is on the basis of statements of the co-accused in the alleged offence. The appellants exculpatory statement should have been given due credence, which has not been done by the Commissioner in the impugned order. Reliance is placed on the following judgment: i. M. Paul Antony vs. Bharat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different Section of the Customs Act, 1962. However, the apex court also held that though the proceedings are separate and distinct, it did not entitle the authorized officer to proceed arbitrarily in making an order of confiscation. Therefore, it is to be seen whether the evidences on record would require imposition of penalty under Section 114 of the Customs Act, 1962. The evidences as produced in the impugned order are in the form of statements of Mr. Somasundaram, wherein it was stated that he had got a call from Mr. C. M. Abdul Razak late in the night informing him that his man was caught by the Customs at the Airport while trying to smuggle out foreign currencies and he also informed him to contact Mr. Aslam at Dubai. Further, Mr. A.K. Nazar who owns a tours and travels, in his statement submitted that Mr. C. M. Abdul Razak made several phone calls on 7.12.1994 to him and it is seemed to be perplexed as if something bad has happened. He also informed him that he has to meet Mr. Majeed. The same set of facts were before the Trial Court, based on which it was held that there is nothing incriminating in the statement of Mr. Mujeeb Rehman incriminating Mr. C.M. Abdul Razak and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt at the hands of the competent criminal court, the penalty under Section 112b of the Customs Act, 1962 would sustain. The Hon ble Madras High Court held that: 11. The reason of such double jeopardy to be avoided is obvious, even though the two proceedings may operate in different fields and may have different nature. The Departmental proceeding on civil side, which is based on preponderance of probability premise based, whereas on the criminal side, it is the proof beyond the reasonable doubt, which forms the basis of conviction or acquittal, are different but the distinguishing feature to allow the two proceedings to go ahead parallely is that the different set of facts and evidence should be available before the concerned authorities proceeding in two parallel proceedings. The same principles would apply in a taxing statute like the Customs Act, 1962, also because the ingredients sought to be satisfied for imposition of penalty as well as for prosecution of the concerned accused persons is same and identically worded, as it would appear from the quotation of the two provisions above. 12 .. 13 .. 14 .. 15. Therefore, in the absence of any additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e currency and vehicle and penalty stands open. Therefore, it is submitted that the de novo proceedings are not as per the directions of the CESTAT, hence the matter should be remanded for deciding afresh. 10. This Tribunal vide its Final Order No. 1270/2003 dated 17.9.2003 had set aside the Order-in-Original dated 18.3.1997 passed by the Dy. Commissioner (Customs) on the ground that he had no jurisdiction to act as an adjudicating authority in view of the quantum in dispute. The appeal was allowed by way of remand with a direction to the jurisdictional Commissioner to adjudicate the matter. Therefore, the show-cause notice had to be freshly adjudicated in view of the above directions of the Tribunal. As seen from the show-cause notice dated 19.5.1995, at para 53 it had proposed confiscation of the foreign currency valued at Rs.1,19,54,092/- under Section 113 of the Customs Act, 1962 along with the material objects used for concealing under Section 119 of the Customs Act, 1962 in addition to the penalty imposed on all the persons involved in the above offence. As rightly argued by the Revenue, the Order-in-Original passed by the Deputy Commissioner was set aside by CESTAT and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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