TaxTMI 
TaxTMI 
2016 (7) TMI 646
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....ursuant to the search conducted at SBI branch at arrival hall, an amount of US $ 18795 was recovered from Sh. M. Vishwanadam, SBI official. DRI officers also intercepted three passengers viz; Mohd. Osman, Mohd Saleem and Abdul Rehman who arrived by IC 592 on 29.08.1997 and found that each of them carrying 10 Kg of gold but did not possess the requisite foreign currency with them to pay the customs duty. On search of their personal baggage 85 FMG bars were recovered from each of these passengers, total 255 FMG bars, each weighing 116.65gm and of 999.0 purity. The 255 FMG bars valued at Rs. 1,36,42,500/- were seized under provisions of Customs Act, 1962 read with FERA. All the aforesaid persons were arrested. Show cause notices were issued to Mohd. Osman, Mohd Saleem and Abdul Rehman proposing confiscation of quantity of gold each 9915.25 gm valued Rs. 45,47,500/- seized from each individual and also imposition of penalty on them under provisions of Customs Act. Sh K. Neelakanta Rao and Sh. Viswanadham were called upon to show cause as to why foreign currency seized from them should not be confiscated under provisions of Customs Act and FERA, in addition of imposition of penalties. ....
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....nd Syed Mazhar Ali with 31325 US $ proceeded to the SBI bank Counter in arrival lounge and later they were let off. The flight came in time and the passengers came into arrival hall and formed a queue at the SBI counter in the arrival hall standing at the said counter even by 2.30 a.m. It is the case of A4 and A5 that both of them were in SBI counter in arrival lounge attending to the passengers arrived and two passengers came and tendered US $ and A4 asked them to bring challan receipts refusing to receive the US $ and the two passengers gave the names and passport numbers and the two passengers names who are present struck off and the names of three other passengers who did not come were noted and that 31,325 US $ were placed by the passengers at the counter table tendering it for payment of custom duty for 50 Kgs of gold and that was taken away by the officers concerned. The defence case is that Al to A3 and Syed Bin Hasan Sharabi and Syed Mazhar Ali together came is established by Ex.D2 immigration certificate for Syed Bin Hasan Sharabi and Syed MazharAli. Though, it is the case of the prosecution that two other passengers did not come from Sharjah by IC 592 flight, but, the sa....
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....ounter for payment of import duty. It is not the case of Al to A3 that the total 31325 US $ belongs to them. Hence, they are entitled for the foreign currency of 18,795 US $ and remaining foreign currency can be confiscated by the concerned officers as per the provisions of the Act and A1 to A3 are entitled to get back the gold on payment of import duty in foreign currency. The concerned authorities are at liberty to calculate the foreign currency that has to be paid towards the import duty for the gold that was brought by A1 to A3 and if 18, 795 US $ is sufficient for the same the said currency is to be adjusted towards the import duty and if it is less than the import duty then the A1 to A3 have to pay the balance import duty in foreign currency for release of the gold which was seized from their possession. 10. In the Common judgment dated 02.06.2015, the Hon'ble High Court did not find any merit in the appeals filed by the department against the above order and dismissed the same. It is seen that the Hon'ble High Court has held as follows: 45. As regards A1 to A3, their defense was that they are owners of the gold and had purchased the foreign cu....
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....brought by them, they would have the option under Section 80 of the Act to retain the said gold with the Customs counter and take it back when they return to Sharjah. Had they been given an opportunity to file a declaration under Sec 77 of the Act, they would have also had a choice to exercise the option under Sec. 80 of the Customs Act. 56. In this view of the matter, I am of the opinion that A1 to A3 cannot be held guilty of the charge under Section 77 or Section 135(1)(b)(i) of the Customs Act, 1962. 12. The learned AR appearing on behalf of department argued that department proceedings and criminal proceedings are separate and merely because there was acquittal in the latter, it would not entail in nullification of the former. 13. We have considered the facts, evidence and the submissions made before us carefully. 14. We are of the considered opinion that the judgments in the criminal proceedings cited supra, will have the effect of neutralizing the order of the lower authority in respect of the two notices (appellants). We have no quarrel with the legal position that departmental proceedings and criminal proceed....
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....ace of an order of acquittal passed by the criminal court on the same set of facts and evidence. When this ruling of the Apex Court is applied to the present case, we have no option but to set aside the penalties. None of the appellants has challenged the confiscation order. Their challenge is only against the penalties. Hence we set aside the penalties Imposed on the appellants by the Commissioner. The appeals are allowed. (iii) In S.M.A. Siddique vs GOI [1989 (42) ELT 541 (Mad)] the Hon'ble High Court held as follows: I had occasion to refer to the above dictum of the Bench in Abubacker v. Secretary, Govt. of India [1981 (2) MLJ 405] with reference to the proceedings taken against a party under the Customs Act, 52 of 1962. There, in the case dealt with by me, before the proceedings of the Authorities under the said statute got terminated finally, the Criminal Court rendered its judgment, acquitting the party not on any technical ground, but on the merits of the case and on identical facts and charges. The dictum of the Bench was applied and the proceedings of the departmental authorities were quashed. I find that there is a warrant to apply the above principle ....