TaxTMI 
TaxTMI 
2012 (10) TMI 445
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....b Khan and Mohammad Illayas, were found occupying the van at the time of interception. On search of the Maruti van, 8 gunny cloth bags containing 294 silver chaurasas were found. The Maruti Van was taken to the Police Station, Pali. Silver chaurasas were formally recovered by the police, however, subsequently they were handed over to customs authorities. A criminal complaint for offence u/s. 135 of the Customs Act was filed against 14 persons including the present petitioner in the court of Special Magistrate, Economic Offences, Jodhpur. The learned Special Magistrate by his order dated 12-2-2002 discharged all the accused persons, including the present petitioner and also directed that seized silver be handed over to him. When the seized silver was not returned to the petitioner, he filed another application before the learned Special Magistrate, Jodhpur, who by order dated 7-3-2002 reiterated his earlier direction for handing over the seized silver chaurasas to the petitioner on furnishing suitable surety bonds and also simultaneously directed that if silver had already been got melted, cash equivalent to its price may be given to the petitioner. The Superintendent, Customs and C....
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....terest to take special measures for the purpose of checking illegal import, circulation or disposal of such goods. Silver at the relevant time was not notified as such. Under chapter IVA and IVB of the Act, silver was noticed under Section 123 of the Customs Act vide notification dated 8-6-1990, followed by a clarificatory notification dated 11-6-1990 from the Finance Secretary, Government of India, New Delhi saying that silver which did not bear foreign mark, was not required to be seized. In the present case, the silver that was seized did not at all bear any foreign markings. Learned counsel submitted that even otherwise, silver was seized while coming from Palanpur to Pali and since both places are situated 400 kms. inside Indian territory, therefore, the customs authorities had no jurisdiction to seize such silver. Learned counsel referred to Section 111 of the Customs Act and argued that none of the clauses from (a) to (p) thereof were attracted in the facts of the present case, therefore, the goods could not be taken to have been improperly imported and confiscation could not be justified. All these arguments were although noticed by the adjudicating authority in his order, ....
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....ding recording by the learned Special Magistrate while discharging the petitioner on the basis of his satisfaction that the silver was not having any foreign mark so as to attack the provisions under the Customs Act, in later part, however, the said court has upheld the order of discharge. Such an order therefore cannot be relied by the respondents for not returning the silver to the petitioner. 7. Learned Senior counsel also argued that statement recorded u/s. 108 being inadmissible in evidence could not be relied by the department to confiscate the seized silver. He has alternatively argued that even confiscation order can now be re-opened as per the provisions contained in Chapter XIV-A regarding settlement of cases. In this connection, learned senior counsel referred to provisions contained in Section 127B. It is therefore prayed that the writ petition be allowed in the terms prayed for. 8. Per contra, Shri Ajay Shukla, learned counsel appearing for respondents opposed the writ petition and argued that at the relevant time, petitioner had the alternative remedy of getting a reference made to this Court under Section 130A of the Act against the order of the Tribu....
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....before the CEGAT by which penalty of Rs. 50,000 was imposed upon him. This would mean that the petitioner accepted the order regarding confiscation as valid, whereas according to Section 129A clause (a), the order passed by the Commissioner of Customs as adjudicating authority is appealable before the Tribunal. Even when the Tribunal partly accepted the appeal filed by the petitioner against the order of penalty and reduced the amount of penalty from Rs. 50,000/- to Rs. 30,000/- by order dated 23-6-2000, petitioner had the remedy of getting a reference made to this Court under Section 130A. Petitioner did not avail that remedy. Now he cannot possibly be permitted to assail validity of the adjudication order regarding confiscation passed on 7-5-1996 and the judgment of CEGAT dated 23-6-2000 directly in the present writ petition, that was filed on 19-8-2003. There is an additional reason, why remedy against the confiscation may not be available to the petitioner seeking a direction to the respondents to return the 294 silver chaurasas weighing 252.177 kgs. to the petitioner. The basic order of confiscation was passed on 7-5-1996. This order to the extent of confiscation, was never su....
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....tution and cannot be ousted by parliamentary legislation is far too fundamental to be questioned especially after the judgment of the Constitution Bench of this Court in L. Chandra Kumar v. Union of India - (1997) 3 SCC 261. However, that does not answer the question of maintainability of a writ petition which seeks to impugn an order declining dispensation of pre-deposit of penalty by the Appellate Tribunal. 31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does no....
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....onal District Judge, accepted those orders as valid, which orders have even otherwise became final. In these facts, petitioner cannot be held to be entitled to the relief prayed for. 14. Even if we test the strength of petitioner's arguments alternatively on merits, we find that Supreme Court in Tukaram G. Gaokar v. R.N. Shukla & Ors. - AIR 1968 SC 1050 held that the power of levy of penalty and confiscation under Sections 111 and 112 of the Customs Act is vested only in customs authorities and criminal court cannot make its adjudication. The customs officials are competent to confiscate the goods and levy penalty on the persons concerned, though the trial of those persons in criminal court for connected offence is pending. Argument that initiation of those proceedings would tantamount to contempt of court, was therefore rejected. 15. A Constitution Bench of the Supreme Court in Sewpujanrai Indrasanarai Ltd. v. Collector of Customs and Ors. - AIR 1958 SC 845 = 1983 (13) E.L.T. 1305 (S.C.) while considering the scope of Section 167(8) of the Sea Customs Act, 1878, which is the predecessor provision of Section 123, held that while criminal proceedings under Section 23....