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TMI Blog2008 (4) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... accused No.5 therein. He was a Customs Officer. He floated various firms in false and fictitious names. Duty drawback amount was claimed for alleged export of readymade garments by the said firms under certain assumed names to the extent of Rs.1,04,62,596/- Appellant herein alongwith others Pawan Kumar, Govind Jha, Radhey Lal made statements under Section 8 of the Act corroborating the allegations made against them that they had conspired with each other in regard to export of inferior quality of readymade garments which had been over-invoiced. 5. Cognizance of the said offence was taken by the Additional Chief Metropolitan Magistrate on 16 th April, 2003. An application for discharge was filed inter alia by the appellant herein which was dismissed by the learned trial judge by his order dated 1 st October, 2003. 6. An application for quashing of the said order was thereafter filed before the High Court. One of the contentions raised before the High Court was that Shri A.K. Saxena being a Customs Officer could not have been proceeded against under Section 135 of the Act and, thus, the complainant committed a serious illegality in exercising his power of arrest as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. "50. Entry of goods for exportation. - (1) The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form. (2) The exporter of any goods, while presenting a shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of its contents." Section 113 of the Act provides for confiscation of goods attempted to be improperly exported, clause (d) whereof reads as under :- "113. Confiscation of goods attempted to be improperly exported, etc.- The following export goods shall be liable to confiscation:-(d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force.". Section 135B of the Act reads :- "135B. Power of court to publish name, place of business, etc., of persons convicted under the Act: (1) Where any person is convicted under this Act for contravention of any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (1) of section 136 is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine: Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than one year. (3) For the purposes of sub-section (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year namely:- (i) the fact that the accused has been convicted for the first time for an offence under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge with the declaration made under Section 77." (c) in clause (k), the words "under a claim for drawback "shall be omitted." 15. It is significant to note that clause (ii) of Section 113(h)(i), which was inserted by Finance (No.2) Act, 1991 w.e.f. 27 th September, 1991 remained in the statute book. As there was a duplication, one of the clauses, namely clause (i) of Section 13(h) was sought to be substituted by the other. 16. The amendments made in Section 135 of the Act by reason of the Amending Act, 2003 must be viewed from that angle. We have noticed hereinabove that the allegations made against the appellant in the complaint petition refer to illegal claim of drawback. The effect of the interpretation of the words "prohibited goods" came up for consideration before this Court in Om Prakash Bhatia vs. Commissioner of Customs, Delhi : (2003) 6 SCC 161 wherein a Division Bench of this Court observed :- "6. At the outset, we would state that the learned counsel for the appellant has not pressed for the drawback in view of the specific provision of Section 76 which inter alia provides that no drawback shall be allowed "(b) in respect of any goods the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of tariff or duty of customs chargeable on the goods. In addition, by reference it is to be resorted to and applied for determining the export value of the goods as provided under sub-section (41) of Section 2. This is independent of any question of assessability of the goods sought to be exported to duty. Hence, for finding out whether the export value is truly stated in the shipping bill, even if no duty is leviable, it can be referred to for determining the true export value of the goods sought to be exported." The question came up for consideration again in Commissioner of Central Excise Customs, A.P. vs. Suresh Jhunjhunwala and others : 2006 (10) SCALE 480 wherein this Court not only noticed Om Prakash Bhatia (supra) but also Commissioner of Customs (EP), Mumbai vs. Prayag Exporters Pvt. Ltd. : (2003) 155 ELT 4 (SC) to hold :- 18. However, it appears, the same Bench considered the matter at some length in Om Prakash Bhatia (supra) and opined that the exporters were obliged to declare the value of the goods. In a detailed judgment, this Court not only took into consideration the provisions of the Customs Act, but also the provisions of Section 15 of the Foreign Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section by itself cannot, in our opinion, be brushed aside, only on the ground that the decision of the same bench in Prayag Exporters (supra) is applicable being related to DEPB Scheme. The question, in our opinion, has to be considered having regard to the provisions of the definition of the 'prohibited goods', 'entry of goods' together with the provisions of the Foreign Exchange Regulation Act." The question came up for consideration yet again in Commissioner of Customs, New Customs House, Mumbai vs. M/s. Vishal Exports Overseas Limited : 2007 (3) SCALE 19 wherein one of us (Sirpukar, J) was a Member. In that case also Om Prakash Bhatia (supra) was noticed. It was, however, found that the factual scenario therein in regard to applicability of the decision had not been established. It may also be noticed that in Sanjeev Kumar Gupta vs. Commissioner of Customs : 2001 CRI. L.J. 1963 a learned Single Judge of the Delhi High Court held :- A person is said to have done anything fraudulently if he does that with an intent to defraud but not otherwise. The requisite guilty knowledge or mens rea under clauses (a) and (b) of Section 135(1) of the Customs Act can be estab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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