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TMI Blog2014 (12) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... result in setting aside, ipso facto, the orders of the confiscation passed by the competent authority under the Act. Therefore, the contention of the appellant that the judgment of the Judicial Magistrate acquitting the appellant was binding on the Departmental Authorities, adjudicating the question of confiscation is not correct. As rightly pointed out by the learned counsel appearing for the first respondent, the fact of seizure of gold and silver bars recovered from the appellant's residence is not in dispute. In the criminal proceedings, it is the duty of the prosecution to prove the case beyond any reasonable doubt and also to prove the mensrea for the above said criminal act by adducing reliable evidence. In the instant case, the respondents have discussed in detail about the seizure of gold and silver bars from the residence of the appellant and the above said fact was not disputed by the appellant. Therefore, the appellant cannot be exonerated from adjudication proceedings. - only on the ground of acquittal in the criminal proceedings, the respondents need not exonerate the appellant from the adjudication proceedings regarding imposition of penalty and therefore, the final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Authorities from the appellant's premises. The above said gold bars were found to be bearing foreign markings, but the silver bars did not have any such markings. The appellant disowned the gold bars but, claimed silver bars. After investigation, the 1st respondent issued show cause notice proposing confiscation of the above said seized goods under Section 111(d) of the Customs Act and imposition of penalty on the appellant under Section 112 of the above said Act. The above said show cause notice was resisted by the appellant in respect of both confiscation and penalty. At the time of personal hearing before the 1st respondent and also in the written submissions, the appellant has not claimed for the gold bars, but in respect of silver bars, the appellant claimed that they are not of foreign origin or smuggled. But, the adjudicating authority by order dated 22.01.1995, ordered confiscation of the above said goods absolutely and imposed penalty of ₹ 7,50,000/- on the appellant. 6. Aggrieved by the above said order passed by the adjudicating authority, the appellant preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal. The Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was no evidence as to how and by whom these gold and silver bars have been smuggled into India from foreign country. In view of the above said acquittal of the appellant in the criminal court proceedings, the penalty of ₹ 7,50,000/- imposed on the appellant by the Adjudicating Authority in respect of the gold bars and also the penalty of ₹ 1,50,000/- imposed by the Adjudicating Authority on the appellant in respect of the silver bars are liable to be set aside, since the silver bars had not been smuggled by the appellant. Further, the learned counsel appearing for the appellant also pleaded to reduce the fine amount in respect of silver bars. On the side of the Department, it was mainly contended before the Tribunal that the department had established the fact that the appellant had illicitly acquired possession of the silver bars and concealed the same beneath the ground without giving such intimation to the department, as required under Section 10(c) of the Customs Act and therefore, there is no need to interfere with the above said order and question of taking a lenient view on the fine and penalties does not arise. 10. The Tribunal has considered the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is dismissed on merits.'' 11. Aggrieved by the above said findings of the Tribunal, this Appeal has been filed by the appellant. 12. Heard Mr.B.Sathishsundar, learned counsel appearing on behalf of Mr.R.Loganathan, for the appellant and Mr.P.Mahadevan learned counsel appearing for the 1st respondent. 13. The learned counsel appearing for the appellant mainly contended before us that on the same set of facts and circumstances, the Judicial Magistrate acquitted the appellant in the criminal court proceedings initiated under Section 135(1)(b)(i) of the Customs Act, read with Section 13(1) of the Foreign Exchange Regulation Act, 1973 in C.C.No.54 of 2002 and therefore, there cannot be any imposition of penalty in the adjudicating proceedings of the Customs Authorities. The learned counsel appearing for the appellant further pointed out that the Judicial Magistrate has considered the evidence adduced in the above said criminal case and finally came to the conclusion that though there is sufficient evidence, as to the recovery of properties from the appellant, there is no evidence as to how and in what manner they had been smuggled from foreign country. Further, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of redemption fine. Since the appellant has not claimed the gold the Adjudicating Authority upheld the order of confiscation of gold. But, the above said gold was recovered along with silver from the appellant and therefore, the appellant is liable to penalty under the provisions of Customs Act. The appellant has not challenged the order of confiscation regarding gold bars, but, only challenged the penalty imposed by the adjudicating authority and it was confirmed by the Tribunal. 16. Admittedly, for recovery and seizure of gold and silver from the appellant's premises, separate criminal proceedings were also initiated against the appellant and in the above said criminal proceedings in C.C.No.54 of 2002, Judicial Magistrate has passed an order of acquittal from the criminal proceedings mainly on the grounds that the prosecution has failed to prove the validity of the order of sanction for prosecution since it does not contain the office seal, date etc., and that the authorities failed to examine several material witnesses to prove the charges against the appellant. Therefore, the Judicial Magistrate court has given a finding that the prosecution has not proved the char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cri) 1830 (Gopaldas Udhavdas Ahuja and another v. Union of India and others), Hon'ble Supreme Court has held in para 21 as under:- ''21. We may clarify that our above observation should not be taken to mean that there is no difference between departmental proceedings under section 71(1) and prosecution for illegal possession under section 85(1). A combined reading of sections 8(1), 71(1) and 85 of the 1968 Act made it clear that the legislature intended to provide for two separate proceedings before two different forums and there is no conflict of jurisdictions between the Authorised Officer acting under section 71(1) to direct confiscation on being satisfied that an offence has been committed and the magistrate making an order on conviction of an accused under section 85(1) and that mere acquittal in the trial before the Magistrate, in every case, cannot result in setting aside, ipso facto, of the orders of confiscation passed by the competent authority under the Act. That merely because there was acquittal in the trial before the Magistrate, due to paucity of evidence or otherwise, would not entail nullification of the order of confiscation of the seized articles i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to be that required for the establishment of a criminal offence under the criminal law. That we think is the basis of the judgment of acquittal in C.A. 389 of 1973. The same view we need not necessarily take in regard to a matter falling under Section 112(b). The Board apparently relied on the statement given by the appellant in the first instance and there can be little doubt, if the appellant is bound by the statement, he has confessed to the guilt. The fact that he has retracted from the confession will weigh with a criminal court but will not deter the authorities under the statute from imposing penalties under Section 112(b). 22. From the above said law laid down by the Hon'ble Supreme Court and finding of this Court, we are of the view that the Act contemplates two separate proceedings for the same act or omission and therefore, there is no question of double jeopardy involved, as rightly pointed out by the learned counsel appearing for the first respondent. The Hon'ble Supreme Court also considered various provisions of the Act and finally held that mere acquittal in the criminal proceedings before Magistrate court in every case cannot result in setting aside, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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