2015 (8) TMI 674 - HC - Customs

Evasion or Attempted evasion of duty Bail Application was filed by accused-petitioner in respect of Case filed for offences under Sections 132 and 135 (1) (i) (A) and (B) of Customs Act, 1962 Whether goods imported on previous occasion without declaration and paying customs duty can be clubbed with present goods which were imported without declaration and without paying customs duty Held that - Each petitioner was examined and his statement was recorded by empowered gazetted officer and each of petitioner admitted that on previous several occasions consignments of gold were brought by him into India from place outside India without declaration and without paying customs duty upon them Words any goods used in provision of act includes not only goods which were seized and confiscated by competent authority, but those goods also which escaped from seizure and confiscation Therefore offence under Section 135 for evasion or attempted evasion of duty must be treated to be continuous offence until customs duty was paid upon goods which were imported without payment Each of the petitioner should be treated to have attempted evasion of duty not only on present consignment of gold, but also for evasion of duty on import of gold on previous several occasions As market price of gold imported exceeds one crore of rupees and value of customs duty attempted to be evaded exceeds fifty lakh of rupees, thus offence committed was non-bailable offence and were not entitled to be released on bail Decided against Applicant.

Summary

Issues Involved:
1. Whether the offences under Section 135 of the Customs Act, 1962, for which the petitioners have been prosecuted, are bailable or non-bailable.
2. Whether the goods imported by the petitioners on previous occasions without declaration and without paying customs duty can be clubbed with the present goods for assessing the total value and evasion of customs duty.

Detailed Analysis:

1. Bailability of Offences under Section 135 of the Customs Act:

The primary issue was whether the offences under Section 135 of the Customs Act, 1962, are bailable or non-bailable. The court noted that sub-section (6) of Section 104 of the Act specifies that offences involving evasion or attempted evasion of duty exceeding fifty lakh rupees, or import/export of goods not declared with a market price exceeding one crore rupees, among others, are non-bailable. Sub-section (7) of Section 104 states that all other offences under the Act are bailable.

The court emphasized that the provisions of the Code of Criminal Procedure (Cr.P.C.) are not relevant for determining the bailability of offences under the Customs Act, as the Act itself provides specific provisions regarding which offences are bailable and which are non-bailable.

2. Clubbing of Previous and Present Imports:

The second issue was whether the goods imported by the petitioners on previous occasions without declaration and without paying customs duty can be clubbed with the current consignment for assessing the total value and evasion of customs duty. The court held that the words "any goods" in Section 135 include not only the goods seized but also those that escaped seizure and confiscation. The court stated that an offence under Section 135 for evasion or attempted evasion of duty is a continuous offence until the customs duty is paid.

The court concluded that the import of gold by each petitioner on previous occasions without paying customs duty is a continuous offence. Therefore, the value of the gold imported on previous occasions should be added to the current consignment for calculating the total market price and the amount of customs duty evaded or attempted to be evaded. This clubbing makes the offence non-bailable as the total market price exceeds one crore rupees and the evasion of duty exceeds fifty lakh rupees.

Conclusion:

The court dismissed both bail applications, stating that the offences committed by the petitioners are non-bailable under sub-section (6) of Section 104 of the Customs Act. The court also noted that considering the gravity of the offence and the potential for repetition, the petitioners are not entitled to bail on merit. The court emphasized that in economic offences affecting the national economy, the national interest should be a key consideration in granting bail.