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TMI Blog2012 (7) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... the PC Sheets imported by them were made by extraction process of scrap indicating that the declaration made by them to the Customs was false, that is, the Sheets are made of degenerated scrap, while as they were prepared from fresh polymer of high resin. The second allegation against them was that the international/domestic price of the raw material, that is, polycarbonate resin required to manufacture the imported PC Sheets is more than the declared price of the finished product at the time of its import. Thus, on the basis of these allegations, a show cause notice was issued to which reply was filed by the petitioners. On not being satisfied, the respondent initiated the departmental proceedings of adjudication against the petitioners and filed a complaint against the petitioners under Sections 132 and 135(1)(a) of the Customs Act, 1962, for misdeclaring the description of imported goods at the time of import and thus, sought their prosecution for various offences under the Customs Act. 3. The petitioners have challenged the said proceedings on the ground that no misdeclaration has been made by them as alleged by the Department and have alleged that the documents which are r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Jain contended that the Supreme Court in Radhe Shyam Kejriwal v. State of West Bengal Anr.; (2011) 3 SCC 581 = 2011 (266) E.L.T. 294 (S.C.) has categorically laid down the parameters where a party has been exonerated in the departmental adjudication proceedings on the basis of certain facts and in case, the criminal prosecution of the same party is being conducted by the Department on the same set of facts then, it tantamounts to gross abuse of the processes of law and, therefore, the criminal proceedings are liable to be quashed. This reasoning, the learned counsel contended, has been arrived at by the Apex Court by a majority view on the basis of the fact that in the adjudication proceedings, the quantum of proof, which is required, is only by a preponderance of probabilities while as in a criminal trial, the quantum of proof, which is required to prove the guilt of the accused persons, is beyond reasonable doubt and thus, the quantum of proof, required in a criminal trial, being much higher, it is next to impossible for the Department to establish that the petitioners are liable to be prosecuted and much less to be convicted for the said offence. Accordingly, it has been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th regard to the adjudication of departmental proceedings and its consequences on the criminal trial, the Apex Court in Radhe Shyam Kejriwal s case (supra) has by majority, after doing extensive examination of all the judgments including the judgments which held slightly a different opinion in Standard Chartered Bank v. Directorate of Enforcement; (2006) 4 SCC 278 = 2006 (197) E.L.T. 18 (S.C.), Asstt. Collector of Customs v. L.R. Melwani; AIR 1970 SC 962 = 1999 (110) E.L.T. 317 (S.C.), Uttam Chand v. ITO; (1982) 2 SCC 543, G.L. Didwania v. ITO; 1995 Supp. (2) SCC 724 = 1999 (108) E.L.T. 16 (S.C.), K.C. Builders v. CIT; (2004) 2 SCC 731, has taken a definite view and culled out the principles which the courts must follow, in case there is a challenge laid to the continuance of the criminal complaint or a trial, in a case where simultaneously departmental adjudication proceedings are also started. These principles are as under :- (i) Adjudication proceeding and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceeding is not necessary before initiating criminal prosecution; (iii) Adjudication proceeding and criminal proceeding are indepen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication proceedings and in the criminal complaint are the same and if the department has not been able to proved by preponderance of probability, the charge or the allegation against the petitioners, it is unthinkable to visualize a situation where they will be able to muster evidence to prove the same charge before a criminal court by a higher degree of proof. In the adjudication proceedings, the two charges which were levelled against the petitioners in the instant case were of misdeclaration and undervaluation. It will be worthwhile to reproduce here as to what the CESTAT Tribunal had to say about the said charges or the allegations levelled against the petitioners. 41. The Revenue has relied heavily on the fact that prior to March, 1999 the importers had described their goods as off spec or stock lot polycarbonate sheet while in the Bills of Entry under which the goods in dispute have been imported, the goods have only been described as per Customs Tariff Heading 392061, to support its contention that goods have been misdeclared. However, the tariff heading covers all kinds of polycarbonate sheets whether made out of virgin polymer or out of recycled/regenerated mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs for release of the goods, the Revenue has clearly stated that M/s. Siddharth has not been suspected of misdeclaration of the goods as they have not declared it to be made out of scrap. 44. In the light of above, I agree with learned Member (Technical) that the finding of the Commissioner that the imported polycarbonate sheets are not made out of recycled polycarbonates is not sustainable. 45. As regards valuation, I find that the charge of undervaluation of goods depends upon the finding as to whether the goods have been misdeclared or not. I have already concurred with the finding of learned Member (Technical) that the goods have not been misdeclared. However, without stopping here, I am going into the question of alleged undervaluation. I find that the learned Member (Technical) has recorded a detailed finding on valuation and then come to the conclusion that there is no merit in the contention of the Revenue that appellants have misdeclared the values of the goods. The goods were cleared after proper examination and, in fact, the value was loaded in the case of M/s. Gayatri Exports from US$ 600 per MT to US$ 1040 per MT meaning thereby that the sample was made at par wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturers, they would have done it through Consulate General of India in Hong Kong. It is also not clear as what are the other authentic sources known to law and therefore this is a vague direction which is not capable of being implemented. The Chemical Examiner of CIPET Bhopal and CIPET Amritsar have not been cross-examined by the Revenue, which they could have done if so desired, and therefore the direction in the order of the learned Member (Judicial) for Revenue to cross-examine these Chemical Examiners amounts to giving an opportunity to the Revenue which was never asked for by them. Ld. Member (Judicial) has also advised adjudicating authority to take advantage of the detailed discussion on valuation by learned Member (Technical), without recording any independent finding on the valuation issue. Ld. JCDR has also not put forth any plea in support of the order recorded by learned Member (Judicial). 46. In the light of the above discussion, I agree with the order recorded by learned Member (Technical). The papers are now returned to the original bench for recording majority order. Sd/- (Jyoti Balasundaram) Vice-President 47. In view of the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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