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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 ..... opounded by the Supreme Court in the case of Canon India Pvt. Ltd. v. Commissioner of Customs [ 2021 (3) TMI 384 - SUPREME COURT] in which it was held that the DRI officers are not customs officers, and therefore, not proper authority in law to initiate proceedings under the Act. In the process, evidently again, the respondents appear to have been instrumental in the initiation of proceedings against the petitioner and others connected with the company besides the company itself by other agencies including the DGFT as well as the Central Bureau of Investigation [CBI]. There was a categorical direction by this Court vide order dated 12.04.2021 that no coercive process shall be initiated pursuant to SCN and the main file in question bearing No. F.No. DRI/HQ-G/338/VI/ENG-2/INT-NIL/2019 dated 26.09.2019. The filing of the complaint before the Court of learned CMM for initiating action under different provisions of the Act is based on sanction accorded by respondent No.1 arising from the same main file and by deliberately suppressing the directions and orders passed in favour of the petitioner. Evidently, the SCN arising out of the main file is under a cloud and once the very foundation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 others initially alleging, re-importing huge quantity of gold jewellery items fraudulently without payment of the customs duty. 3. Shorn of unnecessary details about the allegations in the proceedings leading to arrest, remand and eventually the orders leading to passing of bail orders by the competent Courts as also the allegations levelled at the behest of petitioner and others associated with IMNPL, it is sufficient to highlight the fact that the petitioner has alleged continuous harassment, abuse and torture at the hands of the respondents/DRI officials besides being treated in an inhuman manner during the investigation resulting in a gross violation of the laws. It is also pertine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tful 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 numbers of the gold bars imported vide Bill of Entry No. 2873828 dated 17.04.2019, using the Advance authorisation issued to IMNPL by the Directorate General of Foreign Trade [DGFT]. 7. Unrelenting, the DRI challenged the aforementioned order dated 01.06.2020 by filing a Special Leave Petition No. 10472/2020, which was eventually dismissed vide order dated 01.02.2020 except for enhancing the Bank Guarantee to be furnished by the importers viz., IMNPL from 10 crores to 15 crores. Suffice to state that it was in the said backdrop, the petitioner on being served a show cause notice [SCN] dated 26.09.2019 that the present Writ Petition was filed under Article 226 and Article 227 of the Constitution re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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. 6. Till the next date of hearing, the proceedings pursuant to the Show Cause Notice dated 26th September, 2019 arising out of file bearing No. F.No. DRI/HQ-GI/338/VI/ENQ-2/INT-NIL/2019 before the respondent are stayed 7. Order be uploaded on the website of this Court. {Bold letters emphasis supplied} 9. The petitioner now knocks on the doors of this Court again alleging that every time there is a judicial order in their favour, the DRI institutes a new civil or criminal case, or directs or prevails upon some other Government agency, to target the petitioner and/or his colleagues/employees and thereby somehow keeps the petitioner embroiled in legal battles. The grievance of the petitioner is that the respondent officials of the DRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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. Before proceeding with the matter further, certain basic statutory features ought to be noticed at this juncture. The Contempt of Courts Act, 1971 has been introduced in the statute-book for the purposes of securing of confidence of the people in general and for due and proper administration of justice in the country - undoubtedly a powerful weapon hands of the law courts but that by itself operates as a string of caution unless thus otherwise satisfied beyond doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the statute. The observation as above finds support from a decision of this Court in Chhotu Ram v. Urvashi Gulati wherein one of us (Banerjee, J.) stated as below C p. 532, para 2) 2. As regards the burden and stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13- 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 proceedings and criminal proceedings can be launched simultaneously; (ii) decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) adjudication proceedings and criminal proceedings are independent of each other in nature and (iv) the findings against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution. In view of aforesaid observations of Hon'ble Supreme Court, it is reiterated that if the party deliberately delays completion of adjudication proceedings, prosecution may be launched even during the pendency of the adjudication proceedings, where offence is grave and qualitative evidences are available. 14. Further, taking this Court through the decision in Radheshyam Kejriwal v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exemption of duty and if the similar jewellery in similar quantity is not imported back, then the duty is leviable. It is not explained that as to how the duty could be saved by replacing the larger quantity of bills of entries of jewellery in India by bill of entry of smaller quantity. Further, it is also pertinent to mention that no recovery was effected from the possession of co-accused Gopal Gupta and Mohd. Nashruddin in this case. It is also pertinent to mention that the statement of the accused persons recorded by DRI officials u/s 108 Customs Act have already been retracted and it is alleged by the accused persons therein that their statements were taken under threat and pressure . 17. Learned counsel for the petitioner placed heavy reliance on the observations made by the CESTAT in its order dated 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 informed by the clerk of his counsel, the Petitioner filed an application on 09.06.2023 before the Ld. CMM Patiala House Court to bring the correct facts on record. While filing the Application before the Ld. Patiala House Court, the clerk of the Petitioner's counsel noticed that a criminal complaint under the Customs Act under the same file number which has been stayed vide order dt. 12.04.2021 of this Hon'ble Court has been filed by the DRI. The Copy of the Application dated 09.06.2023 filed by the petitioner before the Ld. CMM, Patiala House Court is annexed as Annexure C-11. 3. Prima facie it seems that the respondents are willfully not complying with the order dated 12.04.2023 of this Court and trying to harass and victimize the petitioner. 4. Issue notice. Mr. Hossain, learned Special Counsel accepts notice, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms 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 concerned Bills of Entry were found with the Jewellery Appraiser Vikram Bhasin, in our view, does not militate against the fact that, at the time of their clearance, Amit Pal Singh did, in fact, present to Bills of Entry, one of which was duly registered, with a Job number, and had been signed by the Customs Import Clerk, and the second, unregistered, undated and unsigned. The first Bill of Entry covered 25400.06 g, and the latter, 25299.68 g, gold jewellery. Clearance of the jewellery was permitted, after appraisement and recording of satisfaction, by the Appraiser, of the fact that the jewellery was, in fact, the same as that which had earlier been exported vide Shipping Bills dated 20th February, 2019 and 13th March, 2019, for the purpose of exhibition abroad. While examining an appeal, against the decision, of the learned Tribunal, to allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or of the respondent. 24. It is further pertinent to mention that in so far as the issue regarding unnumbered Bill of Entry under Section 46 of the Act at the Airport for the jewellery in the baggage is concerned, a Review Petition No. 117/2020 in CUSAA No. 229/2019 was preferred and the Division Bench of this Court vide order dated 26.05.2023 ( Annexure C-7 ) as under: 31. ...In respect of gold jewellery, which was exported for exhibitions and re-imported into the country, the procedure of filing of a B/E, under section 46 of the Customs Act, was inapplicable. Also, the regular provisions applying for import of baggage appear to have been substituted , in case of such re-import, by the procedure envisaged by Clauses 2(xii) and 2(xiii) of the SOP dated 29th March 2016 supra. 25. As per Mr. Khurana, learned counsel for the petitioner, the said orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 adjudicate upon the SCN dated 26.09.2019, which led this Court to pass the order dated 11.01.2023, which is reproduced as under: On 12.04.2021, this Court had directed Till the next date of hearing, the proceedings pursuant to the Show Cause Notice dated 26.09.2019 arising out of file bearing No. F. No. DRI/HQGI/338/VI/ENQ-2/INTNIL/2019 before the respondent are stayed . The said interim order has continued till date. Vide the order of 05.01.2023, notice for physical hearing in respect of show cause No. DRI/HQ-GI/338/VI/ENQ-2/INT-NIL/2019 dated 26.09.2019 has been issued. Mr. Gupta, Additional Director, DRI, who is present in Court states on instructions that notice dated 05.01.2023 against all 11 noticees except Mr. Neeraj Aneja stands withdrawn. His statement is taken on record. In this view of the matter, nothing survives in the contempt petition and the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 angles, evidently to harass and prosecute the petitioner by whatever means in terms of purported action by intentionally over-reaching the directions of this Court. 33. It goes without saying that the sanction accorded under Section 137 of the Act appears to be hit by the dictum propounded by the Supreme Court in the case of Canon India Pvt. Ltd. v. Commissioner of Customs 2021 SCC OnLine SC 200, in which it was held that the DRI officers are not customs officers, and therefore, not proper authority in law to initiate proceedings under the Act. In the process, evidently again, the respondents appear to have been instrumental in the initiation of proceedings against the petitioner and others connected with the company besides the company itself by other agencies including the DGFT as well as the Central Bureau of Investigation [CBI]. The DRI is an apex organisation and launching ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful 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 decision about launching of prosecution or otherwise should be taken by the Commissioner/ Pr.Commr. or ADGRI / Pr. ADGRI after careful application of mind and analysis of evidence brought on record. This should be completed within a month of adjudication of the case (unless it is decided to go for prosecution even prior to adjudication in certain category of cases mentioned at para 6 above). 7.3. Prosecution should not be filed merely because a demand has been confirmed in the adjudication proceedings particularly in cases of technical nature or where interpretation of law is involved. One of the important considerations for deciding whether prosecution should be launched is the availability of adequate evidence. The standard of proof required in a criminal prosecution is higher as the case has to be established beyond reasonable doubt whereas the standard of proof in adjudication proceedings is decided on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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