2016 (11) TMI 1432 - HC - Customs

Interpretation of the word offence - Held that - confiscation proceedings are not the same as that of adjudication proceedings of an offence. Only by a statute, the conduct of a human being can be declared as an offence and so long as it is not so declared, it may not be proper for one to use the expression offence - We find from the order of the Tribunal that the Tribunal is using the expression offence in the place of confiscation proceedings, we hope that the Tribunal will henceforth bear the distinction between the two in mind. For purposes of confiscation of goods, their physical availability is not required - appeal dismissed - decided against appellant.

Summary

Issues:
1. Appeal against order passed by Customs, Excise and Service Tax Appellate Tribunal.
2. Abetment of offense by the appellants.
3. Confiscation proceedings vs. adjudication proceedings of an offense.
4. Use of the term "offense" in confiscation proceedings by the Tribunal.
5. Dismissal of the Civil Miscellaneous Appeal.

Analysis:
1. The judgment pertains to a Civil Miscellaneous Appeal filed by the Customs Department challenging an order issued by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai. The Tribunal had set aside penalties imposed on the appellants, stating that the Commissioner's finding of abetment of the offense by the exporter and another individual could not be sustained as the offense itself had not been determined. The Tribunal allowed the appeals, leading to the Customs Department filing the present appeal before the High Court.

2. The High Court examined the stage of proceedings against the exporter and noted that no progress had been made by the investigating agency due to the untraceable whereabouts of the exporter. As a result, no orders had been passed against the exporter. The Court found no issues with the Tribunal's orders and declined to interfere. It emphasized the distinction between confiscation proceedings and adjudication proceedings of an offense, highlighting that conduct can only be declared an "offense" by statute. The Court referenced a Calcutta High Court judgment to support the distinction and clarified that physical availability of goods is not necessary for confiscation.

3. The High Court addressed the Tribunal's use of the term "offense" in place of confiscation proceedings, advising the Tribunal to bear in mind the difference between the two going forward. The judgment emphasized the legal requirement for an act to be declared an offense by statute before using the term. Ultimately, the High Court dismissed the Civil Miscellaneous Appeal, granting liberty to the department to proceed against the respondent once proceedings against the exporter and his Customs House Agent are finalized, with no costs awarded.

This comprehensive analysis covers the key issues addressed in the judgment, providing a detailed overview of the legal reasoning and conclusions reached by the High Court in this matter.