TMI Blog2002 (9) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... aper for laminate through its agents, M/s. Om International, New Delhi of which the petitioner No. 2 is the Director. The clearance was sought under REP Import Licence No. P/L/3149498/C/ZZ/02/Q/86/C.11.1, dated 9-10-86. The bill of entry was marked to Superintendent (CFS) for examination of goods with the direction to send the goods to the assessing officer. The goods were examined at CFS on 19-8-87 and samples were drawn in the presence of CHA and the Importer. On 24-8-1987, Assistant Collector (ICD) received information that the goods declared as 'Decorative paper for Laminates' were not as per declaration. He, therefore, ordered 100% examination of the goods on 25-8-87 in the presence of the importer, CHA, Superintendent (ICD) and Superintendent (CFS). Two cartons containing 10 samples/catalogue books for wall paper were found which had not been mentioned in the wrapper. The labels found on the goods clearly indicated that the goods were not decorative paper for laminates but were in fact wall paper. The licence produced by the importer did not cover importation of wall paper. Import of any goods into Indian territory except under and in accordance with a valid import licence un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Character of the goods in both the cases is 'decorative paper'. There is only a difference in thickness and no doubt it has been admitted by the appellant that the imported goods could be used as 'wall paper'. Accordingly, we are of the view that in the peculiar facts and circumstances of this case the invoice value cannot be discarded, as contended by the learned SDR, more so in the absence of any acceptable evidence regarding the correct valuation of the goods at the time and place of importation of the goods. In the circumstances, we hold that the department has failed to prove undervaluation of the goods in the instant case. We accordingly order that the value of the goods be accepted as declared by the appellant." 3.In the meantime on 28-4-1988, the Collector of Customs filed a complaint against the petitioners under Sections 132 and 135(1)(a) of the Act and Section 5 of the Imports and Export (Control) Act, 1947 whereupon the petitioners were ordered to be summoned. That the proceedings are going on a snail's pace is apparent from the fact that even after 14 years the complaint is still at the stage of pre-charge evidence. Then on 12-10-2001 the petitioners filed an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court of Bombay in criminal revision application No. 238/66 wherein these questions of law had arisen for consideration. Another decision cited by Sh. Aggarwal is from Andhra Pradesh High Court in the case of K. Neelakanta Rao v. State of Andhra Pradesh reported in 2000 (122) E.L.T. (A.P.) wherein the petitioner was facing prosecution for gold smuggling and unauthorizedly holding foreign currency. He sought stay of the trial till the completion of the adjudication proceedings. Hon'ble High Court declined the request on the strength of the decision of the Supreme Court in the case of Assistant Collector of Customs (supra). Learned single Judge of Andhra Pradesh High Court also referred to two decisions of Delhi High Court in the case of S.K. Sinha v. S.K. Singal - [1987 (30) E.L.T. 900 (Del.) = (1987) 32 DLT 91 (Delhi)] and in the case of Willi Lemback v. Rajan Mathur Another [XI-1992 (3) Crimes 692]. In both these cases this High Court has taken the view that if the department has no good case for the purpose of adjudication it will be most unjust to require the petitioners to go through the entire process of prosecution. Learned single Judge of Andhra Pradesh High Court ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the prosecution is also based on the same set of facts and evidence. It will be most unjust to require the petitioner to go through the entire process of the prosecution in the circumstances of this case. This might virtually amount to persecution and in my view this will amount to abuse of the process of the Court. In view of the findings of Tribunal there is no case against the petitioner. It is as such not legal to prosecute the petitioner of a criminal offence on this set of facts and evidence." 6.In the case of P.S. Rajya v. State of Bihar - 1996 S.C. Cases (Cri.) 897, the appellant an Income Tax Officer was prosecuted by the CBI for being found in possession of the disproportionate assets. Later on the Central Vigilance Commission exonerated the appellant in the departmental proceedings and this was concurred by the UPSC. The appellant then filed a petition under Section 482 Cr. P.C. in the High Court for quashing prosecution but the High Court rejected the petition being of the view that issues raised had to be gone into in the final proceedings. The appellant then approached the Supreme Court. Apex Court allowed the appeal and hold that when on the same allegation app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as to whether in the face of such findings by the department Tribunal, it will be possible to prove the offence alleged against the petitioners with the aid of the presumption of culpable mental state under Section 138A of the Act? Even if a culpable state of mind is presumed that by itself is not an offence. Of course, if there is recovery of any contraband articles from any person who pleaded innocence surely he can be convicted with the aid of presumption of culpable mental state under Section 138A of the Act. Once the recovery of any contraband article from any person is proved as a fact, it will be no defence for such person to say that he was not aware of the presence of the offending article in his luggage because the presumption of culpable state of mind would then be sufficient to make it a case of conscious possession. But when the facts as determined by the Appellate Authority do not make out an offence per se, raising of presumption under Section 138A will be of no help to the prosecution. A mere guilty intention not accompanied by any overt unlawful act is not punishable under the Act or any other law. In all these cases the department Tribunal has not given any find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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