TaxTMI 
TaxTMI 
2010 (3) TMI 259
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....2.10.1995 in contravention of Sections 111, 113, 114, 118 and other Sections of the Customs Act, 1962 read with Section 13(2) of the Foreign Exchange Regulation Act, 1973. The Respondent No.2 is an officer of the Customs who prima facie alleged to have helped the Respondent No.1 in fradulently procuring the currency declaration form dated 18.09.1995 for US dollars 40,000 without actually importing the same. It is the case of the Petitioner that on 12.10.1995 the officers of the Customs Preventive Commissionerate, Mumbai pursuant to a specific prior information intercepted the Respondent No.1 i.e. Mr.Zohar Taherali Dalal, the holder of Indian Passport issued in Dubai on 11.12.1993 after he had cleared the immigration and customs for the purpose of boarding flight to Dubai, foreign currency of US Dollars 40,000 was found in his possession. 4. It is the case of the Petitioner that the show-cause notices dated 08.04.1996 were issued to the Respondents Nos.1 and 2. In reply thereto, the Respondents Nos.1 and 2 filed their reply dated 09.05.1996 and 29.05.1996 respectively. The Respondents Nos.1 and 2 cross-examined the various officers including the Investigating Officer. 5. After fol....
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....of preferring the appeal. Inspite of several applications, the Petitioner did not take any action. The Respondent No.1, therefore, filed Misc. Application dated 12.10.1999 before the CEGAT under Rule 41 of the Customs, Excise & Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 with following prayers: "(a) The respondent be directed to strictly comply with the order No.173& 174/98/WZB/CII dated 17.01.1998 passed by this Hon'ble Tribunal and return the foreign currency of US $ 40,000 forthwith to the appellant. (b) The respondent be directed to pay interest at the official rate on the above mentioned amount from the date of passing of the order i.e. 17.01.1998 passed by the Hon'ble Tribunal till the date of actual payment made to the appellant. (c) Contempt notice be issued against the respondent for noncompliance of the order passed by this Hon'ble Tribunal and suitable action be taken as a consequence thereof. (d) Such other incidental orders and reliefs as may be necessary, keeping in mind the facts and the circumstances of the present case." 10. The CEGAT vide its order dated 04.01.2000 allowed the Misc. Application filed by the Respondent No.1 and directed the Comm....
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....e application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court: Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days. (2) On receipt of notice that an application has been made under sub-section (1), the person against whom such application has be made, may, notwithstanding that he may not have filed such an application, file within forty five days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order in relation to which an application for reference has been made and such memorandum shall be disposed of by the Appellate Tribunal ....
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....ne expeditiously." 14. Mr. Jetly, further submitted that in alternative the Petitioner already preferred Civil Application No.2379/2005 for allowing the Petitioner to treat or convert the present Writ Petition as Reference Application under Section 130(3) of the Customs Act, 1962. Prayer clauses (b), (c) and (d) of the said Civil Application read as under: "(b) in the alternative and without prejudice, this Honourable Court may be pleased to treat/ convert the above petition as a reference application filed under Section 130(3) of the Customs Act, 1962. (c) that this Honourable Court may be pleased to condone the delay, (i) in filing the petition/reference application from the date of receipt of the order till the date of filing of above petition/ reference application excluding the time permitted by the Act. (ii) from the date of filing of the above petition till the date of converting the same into a reference application. (d) that this Honourable Court may be pleased to direct the Appellate Tribunal to state the case and to refer the questions of law or such other question/ questions of law to it for adjudication/ determination." ALTERNATE SUBMISSION 15. Mr. Jetly, lea....
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....nt Writ Petition under Articles 226 and 227 of the Constitution of India challenging the orders dated 17.01.1998 and 15.05.1998 is not maintainable in view of the alternate remedy available to the Petitioner under the Customs Act, 1962. If the reasons given by the Petitioner were to be accepted as valid basis for exercising our judicial discretion to entertain this petition on merits under extraordinary jurisdiction under Article 226 of the Constitution of India, then the provision for reference would be rendered nugatory. A person aggrieved by the final finding of the appellate authority would despite express provision of reference, will invoke writ jurisdiction with impunity. 19. In the present case, there was a specific provision under Section 130(3) of the Customs Act, 1962 for filing the reference application in the High Court within six months against the order of refusing to refer the questions of law to the High Court. The Allahabad High Court in the matter of Century Laminating Company (supra) held that when the alternate remedy is available, writ petition should not be entertained as a matter of course. 20. It is to be noted that it is not the case that the question wh....
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....4, three Judge Bench of the Apex Court held as under:" 4. It is well settled law that while Art.226 of the Constitution confers a wide power on the High Court there are equally well settled limitation which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where is an appropriate or equally efficacious remedy the Court should keep its hands off....." 23 In the case of Naib Subedar Lachhman Dass v. Union of India, 1977 U.J. (SC) 355, three Judge Bench of the Apex court again ruled that in writ petition filed after a gross delay for which there is no satisfactory explanation, the High Court should not exercise writ jurisdiction. 24. In the case of P. S. Sadasivaswamy v. State of Tamil Nadu, AIR 1974 SC 2271, the Apex Court ruled as under: "It is not that there is any period of limitation for the Courts to exercise their powers under Art. 226, nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Art.22....
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....99 and thereafter, the present Writ Petition came to be filed on 13.01.2000. However, as per the provisions of Section 130 of the Customs Act, 1962, the limitation for preferring reference in the High Court is of six months. There is no provision under the Customs Act, 1962 for condonation of delay in filing the reference in the High Court. The Petitioner has also not placed on record any authority to show that the delay in preferring the reference application under Section 130(3) of the Customs Act, 1962 can be condoned. When the Department received the copy of order dated 15.05.1998 on 26.05.1998, they filed the present Writ Petition on 13.01.2000 i.e. after the delay of more than two years. Not only this but the Petitioner preferred the Civil Application No.2379/2005 on 08.09.2005 for treating the writ petition as reference application under Section 130(3) of the Customs Act, 1962 and therefore, there is delay of more than seven years. 28. The Apex Court, in the matter of Commissioner of Customs & Central Excise Vs. Hongo India Pvt. Ltd. reported in 2009(236) ELT 417 (SC), held that Section 5 of the Limitation Act is not applicable in preferring the reference application. Head ....
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....d that the statement of the Respondent No.1 was recorded before the Superintendent of Customs, Mumbai under Section 108 of the Customs Act, 1962 wherein he interalia admitted recovery of 40,000 US dollars from his handbag and stated that on 12.10.1995 he was to depart to Dubai by Flight No.EK501 and that he was carrying only his handbag. 33. Mr. Jetly, learned counsel for the Petitioner/Revenue submitted that though the Respondent No.1 retracted his statement later on but the same cannot be considered at the time of deciding the present case because the Apex Court in the matter of Vinod Solanki Vs. Union of India reported in 2009 (233) ELT 157 (SC) has held that the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors to arrive at a finding as regards to the voluntary nature of statement or otherwise of a confession which has been retracted. Mr. Jetly mainly relied on paragraph No.34 of the said judgment which reads thus: "34. A person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained f....
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....ai and the officers seized foreign currency of US Dollars 40,000 from his possession. 36. Mr. Jetly further submitted that one officer of the Customs i.e. the Respondent No.2 fraudulently managed the currency declaration form to support the Respondent No.1 for smuggling the said foreign currency. He further submitted that the currency declaration form was never executed by the Respondent No.1 when he arrived in India. He, therefore, urged that the impugned orders passed by the CEGAT dated 17.01.1998 and 15.05.1998 are liable to be set aside. PER CONTRAON MERITS 37. Mr. Advani, learned counsel for the Respondent No.1 submitted that the Petitioner/Revenue failed to produce cogent evidence against the Respondent No.1 to show that he illegally brought 40,000 US dollars in India. According to him, when the Respondent No.1 arrived in India as per law he had executed the currency declaration form showing that he had brought 40,000 US dollars in India. 38. Mr. Advani further submitted that the Petitioner also filed a criminal complaint under Section 135(1)(a) r/w 135(1)(ii) of the Customs Act, 1962 and under Section 120B of the Indian Penal Code, 1860 against the Respondents Nos.1 and ....
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....e against the Respondent No.1. 41. Mr. Advani, learned counsel for the Respondent No.1 further submitted that the disciplinary proceedings were also initiated by the Petitioner against their officer i.e. Respondent No.2 Yogesh Kumar under Rule14 of the CCS(CCA) Rules, 1965 wherein the Joint Commissioner of Customs (Vigilance), Mumbai held that the inquiry officer's observations were based solely on the retracted statements of the passenger i.e. Respondent No.1 and therefore, it was not necessary to impose major punishment on the Respondent No.2. Accordingly, the Joint Commissioner of Customs (Vigilance) vide order dated 20.01.2003 held as under: "It is therefore ordered that the pay of Shri Yogesh Kumar, Preventive Officer be reduced by two stages from Rs. 6,550/to Rs.6,200/in the time scale of pay of Rs. 5500-175-9000 for a period of two years with effect from 01.02.2003. It is further directed that Shri Yogesh Kumar, Preventive Officer will not earn increments of pay during the period of reduction and that on the expiry of this period, the reduction will have the effect of postponing his further increments of pay. The period of suspension in respect of Shri Yogesh Kumar, Preven....
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....00 US dollars by executing the currency declaration form. Though the Petitioner disputed genuineness of the said form, they failed to produce on record any cogent evidence in support of their say. It is to be noted that when the Respondent No.1 was leaving India on 12.10.1995, he produced the said currency declaration form and the same was accepted by the Petitioner. Apart from that during the course of investigation, the Petitioner failed and neglected to produce the original currency declaration form on record. The Petitioner relied on a photocopy of the currency declaration form which was handed over by the Respondent No.1 on 12.10.1995 at the time of preparing Panchanama. This itself shows that the Petitioner failed and neglected to produce a cogent evidence on record to verify genuineness of the currency declaration form. Therefore, it is not possible to accept the stand of Petitioner that the currency declaration form produced by the Respondent No.1 is fabricated document. 47. It is to be further noted that in a criminal proceedings before the Chief Metropolitan Magistrate, Mumbai, the statements of several witnesses were recorded including Mohan Ramchandra 23 Salunkhe, Supe....