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TMI Blog2016 (7) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-246/2006 - Final Order No. A/30562-30564/2016 - Dated:- 22-6-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) and Sh. Madhu Mohan Damodhar, Member (Technical) Sh. P. Rama Sharma Sh. Anand Sheshu, Advocates for the Appellant Sh K.S.G.S. Kumar, Assistant Commissioner (AR) for the Respondent ORDER The issue involved in all the above appeals being the same, they were heard together and are disposed by this common order. 2. The facts are that the officers of the DRI on specific intelligence that a Dubai based person was sending 30 Kg of gold through flight No. IC 592, conducted simultaneous searches on 29.08.1997 at two branches of state Bank of India located at departure and arrival lounges at Hyderabad International Airport and searches were also conducted on the passengers. Pursuant to the search conducted at SBI branch departure lounge an amount pf US $ 12530 was recovered from Sh. K. Neelakanta Rao, SBI official. Pursuant to the search conducted at SBI branch at arrival hall, an amount of US $ 18795 was recovered from Sh. M. Vishwanadam, SBI official. DRI officers also intercepted three passengers viz; Mohd. Osman, Mohd Saleem and Abdul Rehman who arriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t them, the order passed by the adjudicating authority will require to be set aside. The learned advocate further pointed out that the department had preferred appeal against this judgment vide Crl. Appeal nos. 1203 and 1204/2005 however, the Hon'ble High Court vide common judgment dated 02.06.2015 dismissed the appeals. 7. At this juncture it would be in order to reproduce relevant portion of the judgments Metropolitan Sessions Judge and the Hon ble High Court. 8. In the common judgment dated 28.06.2005 the Metropolitan Sessions Judge has inter alia found as under: 35. It is the case of the accused 1 to 3 from the beginning that all the five passengers brought with them 31325 US $ from Dubai for payment of import duty for 50 Kgs of gold. Soon after disembarkation from the Aircraft itself some officers escorted them and Al to A3 were taken to a secluded place and detained while Syed Bin Hasan Sharabi and Syed Mazhar Ali with 31325 US $ proceeded to the SBI bank Counter in arrival lounge and later they were let off. The flight came in time and the passengers came into arrival hall and formed a queue at the SBI counter in the arrival hall standing at the said counte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of A1 to A3 is not correct and it is liable to be set aside . 9. It is further seen that the Metropolitan Sessions Judge has decided as under: 39. I decide the point that the finding against A1 to A5 by the lower court that the A1 to A5 have committed the offences u/s 135(1)(b)(i) and 135(1)(b)(ii) of the Customs Act is liable to be set aside and accordingly set aside . 42. The Learned Special Judge passed the order with regard to the material objects are liable for confiscation as per the provisions of the said Act and has not passed any order with regard to the disposal. Since, Al to AS are acquitted for the charge u/s 135(1)(b)(i) of the Customs Act they are entitled for the return of the gold seized from their possession. With regard to the foreign currency that was seized the A1 to A3 are claiming the foreign currency worth of 18, 795 US $ belongs to them and they sent the said currency to the SBI counter for payment of import duty. It is not the case of Al to A3 that the total 31325 US $ belongs to them. Hence, they are entitled for the foreign currency of 18,795 US $ and remaining foreign currency can be confiscated by the concerned officers as per the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dutiable or the import of which is prohibited and in respect of which a true declaration has been made under Section 77, the proper Officer may, at the request of the passenger, detain such article for the purpose of being returned to him on his leaving India; and if for any reason, the passenger is not able to collect the article at the time is of his leaving India, the article may be returned to him through any other passenger authorized by him and leaving India or as cargo consigned in his name. 49. The finding of the trial Court in para-114 of its judgment that A1 to A3 cannot be allowed to declare the gold under Section 77 since they were only the carriers, in my opinion, cannot be accepted. 11. The Hon'ble high Court has further held as below: 52. So even if they did not have convertible foreign currency for payment of customs duty on the gold brought by them, they would have the option under Section 80 of the Act to retain the said gold with the Customs counter and take it back when they return to Sharjah. Had they been given an opportunity to file a declaration under Sec 77 of the Act, they would have also had a choice to exercise the option under Sec. 80 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65 (Tri- Chennai)] We have also examined the case law cited by Id. SDR. Some of the decisions (by High Courts) cited by Id. SDR (vide K.P. Abdul Majeed, V.J.A. Flynn, etc.) are to the effect that adjudication and criminal proceedings are Independent of each other and that the degree of evidence required by the adjudicating authority for imposing penalty is much less than that required by criminal court for convicting the accused. There is no quarrel about this legal position, which has been upheld by the Apex Court also. However, as we have already noted, the view taken consistently by the Apex Court is that, notwithstanding the fact that adjudication and criminal proceedings are independent, any resulting from adjudication cannot be the allowed to stand in the face of an order of acquittal passed by the criminal court on the same set of facts and evidence. When this ruling of the Apex Court is applied to the present case, we have no option but to set aside the penalties. None of the appellants has challenged the confiscation order. Their challenge is only against the penalties. Hence we set aside the penalties Imposed on the appellants by the Commissioner. The appeals are allo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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