2021 (10) TMI 120 - HC - Customs

Validity of summon issued - Seeking to direct the respondent to defer the adjudication proceedings before the respondent - cross examination of the officials and the documents sought for - HELD THAT - On perusal of relevant provisions of the Customs Act, ie., Section 135 under the heading 'evasion of duty or prohibition', it has been provided that, whoever commits any of the action that has been mentioned in Section 135(1)(a) to (e) shall be punishable with the imprisonment which may extend to seven years and with minimum punishment of not less than one year - This is the separate proceedings, which can be initiated by the Customs Department as it is a punitive action on the part of the Customs Department as has been provided under Section 135 of the Customs Act, whereas the adjudication proceedings is altogether a different issue, where ultimately penalty could be imposed against the erring person under Sections 114A and 114AA of the Customs Act. Insofar as the present adjudication process is concerned, it may ultimately end in imposing of penalty under Sections 114A and 114AA of the Customs Act and this proceedings had already been concluded on 30.06.2020 itself. However, for want of furnishing of certain documents, that has been quashed by this Court and accordingly, the respondent was directed to proceed further for furnishing the document - Only in pursuance of the said direction issued by this Court permitting the documents sought for by the petitioner and also permitting the petitioner to cross examine the witnesses as he sought for, now the respondent has fixed the hearing and by thus, the present summon dated 19.08.2021 has been issued. In the Criminal proceedings, which has already been launched against the petitioner, after full-fledged trial, the Criminal Court will decide as to the guilt of the petitioner whether he has to be punished or not. Therefore, at no stretch of imagination, it can be stated that merely because of adjudication process is being conducted, that will have a prejudice against the petitioner in the criminal proceedings launched against him - in view of the peculiar circumstances, where, the service law governing the personnel of the State and Central Authorities concerned, which are in different perspective, where mere preponderance of probability is enough to take a conclusion that whether code of conduct prescribed against service personnel has been violated or not and only in that context, the departmental proceedings would be concluded and the penalties would be imposed against such person. This Court feels that the challenge now made by the petitioner against the impugned summons dated 19.08.2021 directing the petitioner to appear for hearing on 27.08.2021 cannot be a successful challenge - Petition dismissed.

Summary

Issues:
1. Challenge to the summon issued by the respondent Customs Department requiring appearance for hearing while criminal proceedings are pending.
2. Allegation of malafide intention on the part of the respondent in initiating adjudication and criminal proceedings against the petitioner.
3. Request to defer the adjudication proceedings until the completion of the criminal case.
4. Interpretation of provisions under Section 135 of the Customs Act regarding punishment and penalties.
5. Examination of the separate nature and purpose of adjudication proceedings and criminal proceedings under the Customs Act.

Analysis:

1. Challenge to Summon:
The petitioner challenged the summon issued by the respondent Customs Department, directing appearance for a hearing while criminal proceedings were pending. The petitioner argued that simultaneous adjudication and criminal proceedings would prejudice his interests.

2. Allegation of Malafide Intention:
The petitioner alleged malafide intention on the part of the respondent, suggesting a retaliatory motive due to a past legal action. The petitioner contended that singling him out for adjudication and criminal proceedings was unjust.

3. Request to Defer Adjudication:
The petitioner requested the court to defer the adjudication proceedings until the completion of the criminal case. The petitioner argued that common witnesses in both proceedings could lead to prejudice if conducted simultaneously.

4. Interpretation of Customs Act - Section 135:
The court examined Section 135 of the Customs Act, which outlines punitive actions for evasion of duty or prohibition. The court highlighted the distinct nature of punitive actions under this section compared to penalties under Sections 114A and 114AA.

5. Separate Nature of Proceedings:
The court emphasized the separate nature and purpose of adjudication proceedings and criminal proceedings under the Customs Act. It clarified that the ultimate decisions and outcomes in both types of proceedings are different and serve distinct purposes.

In conclusion, the court dismissed the Writ Petition, stating that the petitioner's grounds for challenging the summon were not valid under the provisions of the Customs Act. The court emphasized the different perspectives and outcomes of adjudication and criminal proceedings, rejecting the argument of potential prejudice due to common witnesses.