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TMI Blog2023 (12) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... ple proceedings initiated at the behest of the parties against one another. The genesis of the controversy lies in the action taken by the Customs/Directorate of Revenue Intelligence [DRI] on 24.04.2019 when a colleague of the petitioner, namely Mr. Amit Pal Singh was intercepted at the Exit Gate of the Red Channel at the Indira Gandhi International Airport, for being found in possession of unsold gold jewellery brought back from a Trade Exhibition in a foreign country weighing about 51172 grams. The Customs initiated proceedings under Section 11 and 46 and further search and seizure under Sections 100 and 102 of Chapter XIII of the Customs Act, 1962 [Act]. The gold jewellery besides other documents was seized as per the Panchnama done on 24/25.04.2019 under Section 110 of the Act. Accordingly, the DRI conducted search and seizures not only at the residential premises of the petitioner but also conducted search at the office premises i.e., M/s Its My Name Pvt. Ltd [IMNPL], situated at Safdarjung, New Delhi. Suffice to point out that the petitioner as also few others involved in the business affairs of IMNPL were arrested. Evidently, the DRI foisted a case on the petitioner and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the seized gold articles which were allegedly at the behest of DRI. The petitioner approached this Court in the W.P.(C) 8707/2019, wherein this Court vide order dated 09.08.2019 directed the Customs Authority to consider their representation dated 31.07.2019 seeking provisional release of seized gold articles. On the said representation getting rejected by the Adjudicating Authority vide order dated 04.10.2019, the petitioner filed an appeal before the Central Excise Service Tax Appellate Tribunal [CESTAT], which passed a detailed order dated 13.11.2019 wherein inter alia it was held that the appellant/petitioner had a prima facie case of having with them all the legal documents for rightful possession of the gold articles in question. 6. The said order dated 13.11.2019 was challenged by the Additional Director General (Adjudication) in CUSSA 229/2019 and CM No. 53877/2019 before the Division Bench of this Court, led by the then Hon'ble the Chief Justice, which dismissed the statutory appeal vide detailed judgment dated 01.06.2020, inter alia approving the findings of the CESTAT that 22 out of 25 gold bars, seized from the workshop of the IMNPL, were identical to the bar numb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was intended that officers of the Directorate of Revenue Intelligence who are officers of Central Government should be entrusted with functions of the Customs officers, it was imperative that the Central Government should have done so in exercise of its powers under Section 6 of the Act. Dealing with the notification dated 2nd May, 2012, relied upon by the respondent, which confers the various functions referred to in Column (3) of the notification under the Customs Act on officers referred to in Column (2), the Hon'ble Supreme Court held that the Section under which the notification has been issued does not confer any power on any authority to entrust any functions to the officers. It was also held that the notification which purports to entrust functions as proper officer under the Customs Act has been issued by the Central Board of Excise and Customs in exercise of non-existing power under Section 2 (34) of the Customs Act, hence was invalid. 2. Notice. 3. Learned counsel appearing on behalf of the respondent accepts notice. 4. Reply affidavit be filed within four weeks. Rejoinder affidavit be filed within three weeks thereafter. 5. List this petition on 26th July, 2021. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered." 11. Then relying on the decision in Sushila Raje Holkar v. Anil Kak (2008) 14 SCC 392 by the Supreme Court, it was urged that if an order or direction of a Court "is capable of more than one interpretation, then it can never be said that if one interpretation is adopted, it would amount to wilful disobedience of the orders of the Court." Reference was invited to paragraph (28) of the aforesaid judgment wherein it was held that "two conditions have to be satisfied: (1) that the order was ambiguous and was reasonably capable of more than one interpretation, and that (2) that the party being proceeded against in fact did not intend to disobey the order, but conducted himself in accordance with his interpretations of the order." 12. Learned Senior Standing Counsel then referred to the decision in Anil Ratan Sarkar & Ors. v. Hirak Ghosh and Ors. (2002) 4 SCC 21, and recited the observations in paragraph (13) which is reproduced as under: 13. Befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the wilful nature of the conduct if raised, question of success in a contempt petition would not arise. 13. Learned Senior Standing Counsel then relied on the decision in Ashok Kumar Aggarwal v. Union of India W.P. (C) 11177/2020 decided on 22.09.2021 (DHC) to canvass the point that despite there being an honourable acquittal of a public servant, the government can not be precluded from proceeding to compulsory retire the delinquent individual and when the facts are overlapping, both civil and criminal proceedings can be resorted to by the Government in appropriate cases. Attention of the Court was also invited to a Circular No. 27/2015-Customs dated 23.10.2015 [F.No. 394/68/2013- CUS (AS)] issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise & Customs (Anti-Smuggling Unit), wherein the guidelines in para 6.2 reads as under: 6.2. In a recent judgement passed by Hon'ble Supreme Court of India in the case of Radhe Shyam Kejriwal [2011 (266) ELT 294 (SC)], the Apex Court had, inter alia, observed that (i) adjudication proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing advanced that whenever the assessee or any other person liable under the Act has failed to convince the authorities in the proceedings under the Act that he has not deliberately made any false statement or that he has not fabricated any material evidence, the conviction of such person should invariably follow in the criminal court." 16. Per contra, Mr. Madhav Khurana, learned counsel for the petitioner was mercifully brief but vociferously urged that the impugned directions have been passed in a Writ Petition wherein the petitioner has been seeking the setting aside of the criminal prosecution under various provisions of the Act emanating from file bearing No. DRI/HQ-GI/338/VI/ENQ-2/INT-NIL/2019 inter alia declaration of arrest effect as illegal seeking quashing of seizure memo and sanction for prosecution and in other words, entire proposed criminal action against the petitioner was under challenge. Learned counsel referred to the order dated 03.06.2019 in (Annexure-C4) passed by learned Chief Metropolitan Magistrate, New Delhi wherein a categorical observations was made that "the jewellery if exported for exhibition purpose, has to be imported back so as to claim the exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner sought to distinguish the decisions, which have been heavily relied upon by the learned senior standing counsel for the DRI. Referring to the Circular No. 27/2015-Customs dated 23.10.2015, it was vehemently urged that the respondent officials very conveniently are telling one side of the story and have completely overlooked the guidelines set down in para Nos. 6.2, 7.1,7.2 & 7.3. ANALYSIS AND DECISION: 19. This Court has considered the elaborate submissions addressed by the learned counsel for the parties. This Court has also gone through the entire record of the case including the written submissions filed on behalf of the parties besides case law relied upon by the learned counsel for the respondents. 20. First things first, on filing of the present petition, this Court passed the following order on 14.06.2023, which is reproduced as under:- "1. This is a petition seeking initiation of contempt proceedings in violation of the order dated 12.04.2021 passed by this Court. 2. The learned counsel for the petitioner has drawn my attention to para 42 of the contempt petition which reads as under:- "42. When this fact came to the notice of the Petitioner upon being infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hipping bills. The said findings were not assailed by the ADG, DRI at any stage thereafter. Instead what was traversed was that the petitioner albeit the company IMNPL had smuggled the gold jewellery into India by illegally availing the benefit of the Notification No. 45/2017 dated 30.06.2017 read with Notification No. 21/2019-Cus. dated 24.04.2019. It would be expedient to re-produce the observations of the learned Judges of the Division Bench which are as follows:- "67. The gold jewellery, seized at the Airport, consisted of (i) 25400.06 g gold jewellery, in respect of which Bill of Entry No. 107190, dated 26th February, 2019, with corresponding Job No. 10954, dated 26th February, 2019, was presented, and (ii) 25299.68 kg gold jewellery, covered by an unregistered Bill of Entry, not bearing any Job number, and unsigned by any Customs Import Clerk or even by the respondent. "71. The submissions, though attractive at first blush do not, on closer scrutiny, make out a case for interference, by this Court, with the decision, of the learned Tribunal, to permit provisional release of the seized gold jewellery. The mere fact that, at a later point of time, all copies of the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, of the adjudicating authority, to hold the gold jewellery liable to confiscation. The mere fact that imported goods, consequent on adjudication may, possibly, be held to be liable to confiscation at a later stage, cannot be a ground to refuse provisional release. Else, Section 110A of the Act would, in our view, be largely rendered nugatory and otiose. 81. The resultant position is, therefore, that, while we uphold the decision, of the learned Tribunal, to allow provisional release of the gold, gold jewellery and silver seized at the workshop premises of the respondent, as well as 25400.06 grams of gold jewellery, seized at the Airport, in respect of which there was a registered Bill of Entry, bearing the signatures of the respondent as well as the Customs Import Clerk, as also the Jewellery Appraiser, with a corresponding Job ID No., we set aside the decision, of the learned Tribunal to allow provisional release of the remaining quantity of 25299.68 grams of gold jewellery, seized at the Airport, in respect of which the Bill of Entry, presented for clearance, was unregistered, with no corresponding Job Id No., and did not bear the signature either of the Customs Import Clerk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the sake of brevity but forms Anneuxre-A to this Judgment. 27. Even a bare perusal of the complaint, which is now filed before the learned CMM, New Delhi the complete set of which was supplied during the course of hearing before this Court, would show that the foundation of the allegation and the entire narrative are based ditto as contained in the aforesaid SCN. It also stares on the face of the record that in the process of filing such complaint for the purposes of consideration of materials for taking cognizance of offences, the DRI has deliberately omitted to place on record the afore referred orders passed in the matter in favour of the petitioner and others associated with the IMNPL, including deliberate omission to file orders passed by the CESTAT dated 13.11.2019 as also the orders of the Division Bench of this Court dated 01.06.2020 and also the review order dated 26.05.2023. 28. Learned counsel for the petitioner has rightly pointed out that this is not the first time where an attempt has been made to over-reach the directions of the Court. Earlier, CONT.CAS. (C) 34/2023 was filed against the respondent No.1, Mr. Sunil Kumar Sinha, when an attempt was made to adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the SCN dated 26.09.2019 arising from the main file in question is under a cloud in view of the decision by the CESTAT as well as the decision of the Division Bench of this Court, and it is in the said backdrop, this Court directed that no action shall be taken arising out of file No. DRI/HQ-GI/338/VI/ENQ2/INTNIL/2019. Hence, the dictum in the cases of Ashok Kumar Aggarwal and Radha Kishan Kejriwal (supra) cannot be applied in the given facts and circumstances of the instant matter. 31. This Court can very well see through the design of the respondent officials, who very conveniently alluded to paragraph No. (6.2) of the Circular No. 27/15-Customs dated 23.10.2015, so as to buttress the purported action taken by them but at the same time miserably failing to adhere to the other relevant guidelines vide Clause 7 of the above mentioned Circular1. 32. The long and short of the foregoing discussion is that the manner in which the proceedings after proceedings are being foisted upon the petitioner and others besides the company in question, leave a lasting impression that there is a repeated, deliberate and contumacious attempt by the respondents officers to corner them from all ang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f hearing i.e., 14.02.2024 to show cause as to why they should not be punished under Section 2 (b) read with Section 11 and 12 of the CC Act for being in gross violation of the directions of this Court dated 12.04.2021. ---------------------- Notes: 1. 7.1. In all such cases, where prior approval of Chief Commissioner/Principal CC or DGRI / Pr. DGRI is necessary for launching prosecution, an investigation report for the purpose of launching prosecution (as per Annexure- I), should be carefully prepared and signed by the Assistant Commissioner / Assistant Director concerned. The investigation report, after careful scrutiny (for incorporation of all relevant facts) should be endorsed by the Commissioner/ Pr. Commr. or ADGRI/ Pr. ADGRI. The Chief Commissioner/Principal CC or DGRI / Pr. DGRI should ensure that a decision about launching of prosecution or otherwise, is taken after careful analysis of evidence available on record and communicated to the Commissioner/Principal CC or ADGRI/Pr. ADGRI within a month of the receipt of proposal. 7.2. In all other cases, where prior approval of Chief Commissioner/Principal CC or DGRI / Pr. DGRI is not required, the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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