TaxTMI 
TaxTMI 
2014 (1) TMI 277
X X X X Extracts X X X X
X X X X Extracts X X X X
....m gold imported duty free. The Directorate of Revenue Intelligence, Cochin (hereinafter referred to 'DRI, Cochin') getting information that gold imported duty free by the Unit of the above Company in Kakkanad is being smuggled out by a gang headed by petitioner close surveillance was kept on such activities. On 10-5-2013, third accused employed in the Company, and an associate of petitioner, was intercepted at Ernakulam Railway Station while he was trying to board a train to Bangalore. Search over his person resulted in recovery and seizure of 900 gms of gold. Disclosure statement made by him revealed that the gold was handed over to him by the second accused, Manager of the above Company, in the Unit at Special Economic Zone, Kakkanad. The gold was smuggled out from the Unit for being handed over to first accused, and that on previous occasions also such smuggling operations had been carried out from the gold imported duty free and handed over to petitioner in Bangalore. That disclosure led to arrest of second accused and, later, after recording their statements, both of them were produced before the Magistrate. Petitioner was proceeded as the first accused in the above crime regi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... active law, which is against the constitutional mandate. Value of materials alleged to have been smuggled out from the Unit of the Company in the Special Economic Zone on four occasions together exceeded one crore, is the case of DRI to proceed against the accused, and where only one transaction, that too in respect of 900 gms of gold, allegedly, seized from the third accused on 10-5-2013 alone can be reckoned as having taken place after amendment of Section 104 of the Customs Act, it is submitted, invoking of Section 104(6)(c) of that Act is impermissible, and further it is violative since the petitioner cannot be proceeded under ex post facto legislation. Learned counsel has also referred to the definition of 'export' and 'import' in the Customs Act and also some provisions of the Special Economic Zones Act, 2005 to contend that to constitute an import or export the materials should have been either sent outside India or received from outside India. When that be so, according to counsel, criminal proceedings launched against petitioner by the DRI is prima facie unsustainable. Petitioner in the given facts of the case deserve to be granted pre-arrest bail is the submission of cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e that any person has committed an offence under Section 132 or 133 or 135 or 135A or 136 of that Act. Where the offence related to prohibited goods or evasion or attempted evasion of duties exceeding Rs. 50 lakhs sub-section (4) states that it shall be treated as cognizable. In Om Prakash and Another v. Union of India and Another [2011 (272) E.L.T. 321 (S.C.) = 2011 (24) S.T.R. 257 (S.C.)] the Apex Court held that the offences under Section 135 of the Customs Act are bailable. After the above decision under the Finance Act, 2013, Act 23 of 2012, Section 104 has been amended by which evasion of duty or prohibitions which fall under clause (6) of Section 104 has been made as non-bailable offence. It is futile to contend that the evasions carried out previously should not be reckoned with an evasion made and detected after amendment for the reason that the offence committed on the previous occasion, then, constituted only a bailable offence. The tenability of such a contention has to be looked into examining the question whether amendment made with respect to an offence as to whether it is cognizable or non-cognizable, or, bailable or non-bailable under law, can be canvassed by a per....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mended, the Apex Court has observed that the procedure for grant of bail being procedural nature would operate retrospectively. So any argument canvassed with respect to provisions under Section 104 of the Customs Act, before and after amendment, that previously the offences were bailable and now some of them are non-bailable cannot come to the assistance of petitioner to contend that whatever offences continuously carried out by him in relation to the evasion of duty which was detected later after amendment has to be considered separately constituting only bailable offence. When all such transactions could be reckoned together for determining the quantum of value of goods where an offence over evasion of duty is detected after the amended act, there is no merit in the plea made for treating the earlier transactions as constituting only bailable offences. 7. I do not find any merit in the submission made by counsel with reference to the definitions of 'import and export', and also some provisions of the Special Economic Zones Act, 2005 to impeach the proceedings initiated by the DRI in the case. Suffice to state the Customs Act provides for imposition of penalties when any ....