1987 (6) TMI 42 - HC - Customs

Adjudication in departmental proceedings vis-a-vis prosecution in Criminal Court - Illegal import

Summary

Issues:
1. Confiscation of goods under Section 111(d) of the Customs Act, 1962
2. Levy of personal penalty under Section 112 of the Customs Act, 1962
3. Fair opportunity to defend the case
4. Option to pay fine in lieu of confiscation under Section 125 of the Act

Confiscation and Personal Penalty:
The petitioner challenged an order confirming the confiscation of cloves valued at Rs. 47,000 and a personal penalty of Rs. 2,500 under Sections 111(d) and 112 of the Customs Act, 1962. The petitioner claimed that a criminal court acquitted them on the same facts and charges, arguing that the confiscation and penalty could not be sustained. The court referred to a judgment supporting this argument, emphasizing that the acquittal on merits by the criminal court should influence the customs proceedings. However, the respondent argued that different sections of the Act allow separate proceedings, and the acquittal in one does not automatically nullify actions under another section. The court noted conflicting judgments but ultimately held that the acquittal did not mandate setting aside the confiscation and penalty.

Fair Opportunity to Defend:
The petitioner contended that they were not given a fair opportunity to defend the case. However, the court found that the petitioner had been adequately represented through counsel during the proceedings before the authorities. It was determined that ample opportunities were provided for the petitioner to present their defense, and thus, the argument regarding a lack of opportunity was deemed unacceptable.

Option to Pay Fine in Lieu of Confiscation:
The petitioner argued that they were not offered the option to pay a fine in lieu of confiscation, as provided under Section 125 of the Customs Act. The court agreed with this argument, noting that since the seized goods were not prohibited items, the petitioner should have been given the option before confiscation. Therefore, the court set aside the orders of confiscation and remanded the matter to the Deputy Collector to allow the petitioner to exercise the option under Section 125 of the Act.

In conclusion, the writ petition was allowed for reconsideration based on the provisions of Section 125 of the Act, and the orders of confiscation were set aside. The Deputy Collector was directed to reevaluate the matter in light of the option to pay a fine in lieu of confiscation within a specified timeframe.