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TMI Blog2009 (8) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... ign currency recovered has been given as follows : (i) Left Foot-Deutsche Mark = 1000x65 = 65,000 (ii) Right foot-(a) Deutsche Mark - 500x44 = 22,000 (b) Swiss Frank = 1000x32 = 32,000 II. On demand by the DRI officers, the accused No. 1 could not produce any evidence in support of unlawful import, acquisition and possession or exportation of the above referred recovered foreign currency. The value of the above referred foreign currency in Indian rupees is given below: (i) Deutsche Mark = 1000x65 = Rs. 24.35x65,000 = Rs. 15, 82,750/- (ii) Deutsche Mark = 500x44 = Rs. 24.35x22,000 = Rs. 5,35,700/- (iii) Swiss Frank = 1000x32 = Rs. 29.75x32,000 = Rs. 9,52,000/-. III. The statement of said Tankeshwar Singh was recorded under Section 108 of the Customs Act on the same day where he stated; That in 1996, he went to London and came back to India after around two months and joined as a Manager with M/s. Clouds Club (India), x/466, Jain Gali, Raghubar Pura No. 1, Gandhi Nagar, Delhi; that he was getting a salary of Rs. 6,600/- per month; that Vikas Mohan Singhal was the proprietor of M/s. Cloud Club (India); that he resided at C-8/243, Yamuna Vihar, Delhi, Telephone No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kar had asked for two days leave telephonically; that there is no record of the same; that after the arrest of Tankeshwar Singh Nimbekar, he was apprehensive and scared to come to India; that when Tankeshwar Singh Nimbekar was detained under COFEPOSA, Tankeshwar Singh Nimbekar's brother read the documents supplied to Tankeshwar Singh Nimbekar and informed him telephonically at Dubai that his name (Singhal) had been included in the statement of Tankeshwar Singh Nimbekar; that he was the source of Indian currency in lieu of foreign currency which the Afgani person had given as per his direction. However, accused No. 2 stated that he was not related to the seized foreign currency and only Tankeshwar Singh Nimbekar could explain as to why he had been falsely implicated; that he asked Tankeshwar Singh Nimbekar's brother to sent the COFEPOSA papers to him to know what he (Tankewshwar) had stated; that on reading the papers, he became scared and did not come to India till 14th November, 1999; that he was submitting a copy of Bank statement for the month of August, 1999; that he also put his signatures on a copy of the statement of Tankeshwar Singh Nimbekar shown to him in token of having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him. Even otherwise, statement of Shri Tankeshwar Singh, appellant, being of co-noticee cannot be made sole basis for imposing penalty on Shri vikash Mohan Singhal, appellant, under Section 114 of the Customs Act, without corroboration from any reliable evidence, in view of the law laid down in Punit Kumar Sakhuja &.Anr. v. CC New Delhi, 2001 (43) RLT 797 (CEGAT) and Shri Sunil Ghosh v. CC (Prev.) West Bengal, Calcutta, 2001 (47) RLT 234 (CEGAT), referred by the counsel. 6. Therefore, for want of any reliable evidence against Shri Vikash Mohan Singhal, appellant, the impugned order of Commissioner of Customs imposing penalty of Rs. 6 lakh on him cannot be sustained and same is set aside. 7. In the light of the discussion made above, the appeal no. C/579/2001-NB of Shri Tankeshwar Singh, stands disposed of in the terms detailed above, while appeal no. C/584/2001-NB of Shri Vikash Mohan Singhal is accepted with consequential relief, if any, permissible under the law. 5. Against the aforesaid order of the Appellate Tribunal, the respondents have not filed any further appeal or revision and had accepted the said order, yet they wanted to continue with the proceedings in the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India, Crl.M.C. 6649/2005, decided on 18-4-2007 [2007 (217) E.L.T. 26 (Del.)] (5) Standard Chartered Bank v. Directorate of Enforcement - 2006 (197) E.L.T. 18 (S.C.) (6) Surkhi Lal v. Union of India - 2005 (85) DRK 11 (7) M/s. Bihariji Mfg. Co. P. Ltd. v. Commissioner of Central Excise, Crl.M.C.938/2008, decided on 14-2-2007 [2007 (212) E.L.T. 183 (Del.)] 9. The principles which has been crystalized in these judgments including the judgments delivered in the case of Sunil Gulati (supra), which has also been relied upon by the respondents, stand enumerated by Justice S. Ravindra Bhat in the case of M/s. Bihariji Manufacturing Cooperative Pvt. Ltd. v. Commissioner of Central Excise - Crl.M.C. 938/2008 in the following words: (i) On the same violation alleged against a person, if adjudication proceedings as well as criminal proceedings are permissible, both can be initiated simultaneously, for initiating criminal proceedings on does not have to wait for the outcome of the adjudication proceedings as the two proceedings are independent in nature. (ii) The findings in the departmental proceedings would not amount to res judicata and initiation of criminal proceedings in these ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits holding that there is no contravention of the provisions of any Act. In the aforesaid judgment the learned Single Judge after applying the aforesaid principles came to the following conclusion: that show cause notice as well as the complaint are premised on identical facts, namely, clandestine and illegal removal without disclosure to the Central Excise Authorities by the petitioners. Though the first round went in favor of the Department in as much as adjudication by the Commissioner fastened liability upon the petitioners, those findings were reversed by the Tribunal, which categorically and unambiguously recorded that there were no materials recovered to prove the charge of clandestine removal, or that evasion of duty stood established. In these circumstances, I am of the opinion that on application of the rule enunciated in Sunil Gulati's case, (particularly, the latter portion of proposition (4) quoted above, i.e. exoneration of the assessed being on merits, and not on a technicality), further proceedings in the criminal complaint would not sub-serve ends of justice. 10. It has been submitted by the petitioners that a perusal of the order of the Tribunal and the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the findings of the adjudicators/assessing authority, that would have no bearing on the criminal proceedings and the criminal proceedings are to be determined on its own merits in accordance with law, uninhibited by the findings of the tribunal. It is because of the reason that in so far as criminal action is concerned, it has to be proved as the strict standards fixed for criminal cases before the criminal court by producing necessary evidence. 28. It is thus clear that the exoneration is not on merits. The learned trial court while rejecting the application of the petitioner for discharge has referred to the judgments of the Supreme Court in cases of K.K. Pavunay v. Assistant Collector - (1997) 3 SCC 721, Hem Raj v. State of Ajmer - AIR 1954 SC 462, Assistant Collector of C.E. v. Duncan Agro Industries Ltd. - AIR 2000 S.G. 2001 & Surjeet Singh v. UOI - AIR 1997 S.C. 256 on the basis of which he has observed that the statement of accused recorded under Section 108 of the Customs Act cannot be disbelieved merely because retraction has been filed. After discussing this law, in penalty made para, the learned trial court has observed: "From the aforesaid authorities, it: is evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Paramjit Singh v. Commissioner of Customs & Ors. (supra) it has been observed: 6. As per the allegations the petitioner was the owner of truck No. DEL1885; from a secret cavity in this truck 27.17 kgs. of gold worth more that Rs. 57.0 lacs was recovered; the driver and the cleaner in their statement recorded under Section 108 of Customs Act named the petitioner; and after the seizure petitioner absconded. All these circumstances show, prima facie, case for framing of the charge. At the stage of framing of charge, evidence is not required to be appreciated, even grave suspicion is enough. Reference in this regard can be made to Supreme Court decisions in (i) Munna Devi v. State of Rajasthan and Anr. 2001 (8) SC 172, (ii) State of M.P. v. S.B. Johari & Ors., 2000 (1) Crimes 165 (SC), (iii) Ram Kumar Laharia v. State of Madhya Pradesh and Anr., 2001 1 AD S.C. 54, (iv) Om Wati v. State 2001 SCC 685 17. The judgment delivered in the case of Rehmatullah v. N.C.B. (supra) is a judgment in respect of a case under the NDPS Act. In para 16 of the said judgment, it has been observed: 16. In order to examine the contention that successive statements cannot be recorded under Section 67 N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntariness and truthfulness will have to be satisfied. As far as the statement not being voluntary is concerned, there is no evidence to substantiate the plea of the accused that they were subjected to physical torture by the officers of the Respondent. The other circumstance relied upon is that both the accused have retracted their confessions on the ground that they were compelled to give statements earlier. In Kanhaiyalal v. Union of India, the Supreme Court was dealing with a case where, after making a statement under Section 67 NDPS Act, an application was filed by the accused for retracting the confession. However, no order was passed on that application. The Supreme Court then held (AIR, p.1052): 40. It may also be recalled that though an application was made for retracting the confession made by the appellant, neither was any order passed on the said application nor was the same proved during the trial so as to water down the evidentiary value of the said statement. On the other hand, in the absence of such evidence on record, the High Court had no option but to proceed on the basis of the confession as made by the appellant under Section 67 of the NDPS Act. Since it has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent that the findings of the Special Enforcement Director discharging the show cause notices issued to the petitioner were premised on merits and on full appreciation of all the factors. In these circumstances, I am of the considered view that such a decision amounts to a categorical and unambiguous finding that no contravention of provisions of law, took place. It, thereforee, falls within the fourth category contemplated in Sunil Gulati's case, thereforee, the basic reason for prosecuting the petitioner, namely, his having contravened provisions of the Act, a foundational issue, in terms of violation of Section 56 ceased to exist. Accordingly the criminal complaint against the petitioner in that case was quashed. 21. The judgment delivered in Standard Chartered Bank v. Directorate of Enforcement (supra) is relied upon by both the sides but the said judgment only says that the proceeding can be taken out with respect to the same cause of action by way of adjudication as well as by filing a criminal complaint however, once the adjudicatory proceedings exonerates the petitioner then there is no reason for continuing with the criminal complaint. 22. I have already quoted the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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