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TMI Blog2016 (2) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... onal hearing. Both the notices, however, placed sufficient evidence in support of the lawful acquisition of 1000 Euros each for authorized dealer. As regards 110 Euros, in his opinion, were lying unspent from their previous foreign visit. These lawfully acquired 2110 Euros, were, however, used to conceal the 34000 Euros. 3. Accordingly vide order dated 12.03.2007, the Additional Commissioner passed the order as under:- "(i) Absolute confiscation of Euros 22075 and Euros 11925 out of 23185 and 12925 Euros recovered and seized respectively from Sh. Prem Kumar & Sh. Sachin Bharti Under Section 113 (d)(e) & (h) of the Customs Act, 1962. (ii) Confiscation of 1110 and 1000 Euros out of 23185 and 12925 Euros recovered and seized respectively from Sh. Prem Kumar & Sh. Sachin Bharti under Section 119 of the Customs Act, 1962. However, I give an option to Sh. Prem Kumar to redeem the same on payment of redemption fine of Rs. 6000/- and to Sh. Sachin Bharti on payment of redemption fine of Rs. 5000/-. The Euros would however be released after obtaining a no objection certificate from the competent Court where the trial of the notices is pending. (ii) Confiscation of trousers, Olive gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Customs Act, 1962 and FEMA. Foreign Currency being not prohibited under Customs Act and no special circumstances shown by the Adjudicating Authority to warrant absolute confiscation, it (Adjudicating Authority) was required to give option to redeem the same for home consumption in terms of Section 125 of the Customs Act, 1962. In this context it is considered necessary to refer to the relevant portion of Section 125 of Customs Act. In his voluntary statement dated 28.09.2005 tendered under Section 108 of Customs Act, 1962 the appellant 1 admitted and claimed that out of EUROS 12925 recovered from appellant 2 EUROS 11925 belonged to him and EUROS 1000 were legally procured by appellant 2. The same fact was admitted by appellant 2 in his statement dated 28.09.2005. Thus the total foreign currency of EUROS 34000 confiscated absolutely belong to the appellant 1 (Sh. Prem Kumar). Therefore the total foreign currency of EUROS 34000 (including EUROS 22075 recovered from the appellant 1 and EUROS 11925 from the appellant 2) is hereby released to the appellant 1(Sh. Prem Kumar) being the claimant and the owner of the impugned foreign currency on payment of a fine of Rs. 4,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons for such exoneration to determine whether these criminal proceedings should still continue. If the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits of the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. xxxxxxxxxxxxxxxxxxxxxxxxxx 24. Keeping in view, the view taken in Sunil Gulati & Anr.(supra), I am of the opinion, that the criminal proceedings pending before the trial court cannot go on, against the petitioner, since the petitioner has been fully exonerated by the Joint Secretary to the Government of India, and same has attained the finality. 25. In view of the above submissions and discussions, I quash the proceedings in the criminal complaint dated 08.08.2002, under Sections 132 & 135 (1)(a) of the said Act, pending against the petitioner in the Court of Ld. ACMM, New Delhi." 15. Even otherwise, this Court is of the view that the argument raised by the learned counsel for respondent-Department is no longer res integra in view of the judgment of the Supreme Court in Radheyshyam Kejriwal vs. State of West Bengal & Anr., JT 2011 (2) SC 443. In the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Officer (supra). 17. Consequently, present petition is allowed and the impugned order dated 25th November, 2010 passed by the Special Judge, NDPS, Patiala House Courts, New Delhi, is set aside and proceedings in CC No.971/1/02 are also quashed." 8. Ms. Sonia Sharma, Sr. Standing Counsel for Customs submitted that she has filed a counter-affidavit, wherein the stand of the Department is as under:- "(i) The writ petition needs no reply. However, that foreign currency is not prohibited goods under Customs Act, 1962 and the Commissioner of Customs (Appeal) rightly released the seized foreign currency on payment of redemption fine and has upheld that there was violation of provisions of Customs Act and as such upheld the seizure and penalty. However, the Commissioner of Customs (Appeal) has set aside the absolute confiscation into release on payment of redemption Fine U/s. 125 of Customs Act and has also upheld the personal penalty (in short PP) imposed upon both the passengers and however only reduced the amount of PP. (ii) Further submitted writ petition is wrong and denied. However, ld. ACMM vide order dated 04.11.2009 ordered for release of foreign currency to the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the petitioner is under Section 132 of the Customs Act, 1962 which reads as under: "132. False declaration, false documents, etc.-Whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both." 13. A perusal of the aforesaid Section shows that the said provision is applicable if there is any false declaration and due to which, if there is any evasion of duty, then the person would be dealt under Section 135 of the Customs Act, 1962. 14. Since, the petitioner has already been exonerated vide order dated 17.10.2007 under Section 135 of the Customs Act and the EUROS in question were directed to be released in his favour, the consequence of Section 132 of Customs Act becomes irrelevant. 15. It is not in dispute that foreign currency possessed by the petitioner consisted of Euros 23195 and Euros totalling Euros 36120. Considering the provisions of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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