TaxTMI 
TaxTMI 
TaxTMI 
2023 (12) TMI 385
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....re Government of India which was rejected, the remaining noticees accepted the Order-in-Appeal except Mr. C. M. Abdul Razak, the present appellant. The appellant Mr. Abdul Razak filed an appeal before CESTAT and this Tribunal after setting aside the Order-in-Original directed the Commissioner to re-adjudicate the case. The Commissioner in the impugned order states that none of the noticees including the present appellant had claimed the ownership of the foreign currency seized and therefore, the question of confiscation of the seized foreign currency and the materials used to conceal the same is also to be untouched. Accordingly, he proceeds with the involvement of Mr. C. M. Abdul Razak in concealing the foreign currency. After verifying the documents and statements, the Commissioner imposes a penalty of Rs.10,00,000/- on the appellant. The appellant is in appeal against this impugned order. 2. The learned counsel on behalf of the appellant submits that on the very same set of facts which was the subject matter of adjudication, the appellant was prosecuted along with others for the alleged offences under Section 135 of the Customs Act, 1962. The Trial Court on merits found no mate....
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....guilt beyond reasonable doubt. The Trial Court held only the passenger Mr. Mujeeb Rehman as guilty and Mr. C. M. Abdul Razak one of the accused as not guilty and they were acquitted under Section 248(1) of CrPC. The Commissioner relying upon the decision in the case of Gopaldas Udhavdas Ahuja vs. Union of India: 2004-TIOL-123-SC-CUS has held that acquittal by Trial Court cannot invariably result in setting aside the orders of confiscation in adjudication proceedings. We agree with this view of the Commissioner since these proceedings are entirely different proceedings under different Section of the Customs Act, 1962. However, the apex court also held that though the proceedings are separate and distinct, it did not entitle the authorized officer to proceed arbitrarily in making an order of confiscation. Therefore, it is to be seen whether the evidences on record would require imposition of penalty under Section 114 of the Customs Act, 1962. The evidences as produced in the impugned order are in the form of statements of Mr. Somasundaram, wherein it was stated that he had got a call from Mr. C. M. Abdul Razak late in the night informing him that his man was caught by the Customs at ....
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....und, the Supreme Court held that the statement of the co-accused has no evidentiary value and also the statement of the co-accused has not been corroborated with any other evidence. Accordingly, the penalty imposed was held as not sustainable. 7.2 In the case of Commissioner of Customs, Trichy vs. Duraiappa: 2019 (367) ELT 628 (Mad.) wherein the question here arose whether on the same set of facts and evidences when the prosecution initiated by the customs authorities under Section 135 of the Customs Act, 1962 had resulted in an acquittal giving them the benefit of doubt at the hands of the competent criminal court, the penalty under Section 112b of the Customs Act, 1962 would sustain. The Hon'ble Madras High Court held that: "11. The reason of such double jeopardy to be avoided is obvious, even though the two proceedings may operate in different fields and may have different nature. The Departmental proceeding on civil side, which is based on preponderance of probability premise based, whereas on the criminal side, it is the proof beyond the reasonable doubt, which forms the basis of conviction or acquittal, are different but the distinguishing feature to allow the two proceedi....
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....d Representative further submits that there is legal infirmity in the impugned order in as much as the Commissioner has not dealt with the question of confiscation. It is submitted that this Tribunal has set aside the Order-in-Original 18.3.1997 on the ground that he had no jurisdiction to adjudicate the matter hence, the order became null and void. It is also claimed that in the absence of any decision by the Commissioner on the proposal made in the show-cause notice for confiscation of the currency and the vehicle, the issue of ownership of the currency and vehicle and penalty stands open. Therefore, it is submitted that the de novo proceedings are not as per the directions of the CESTAT, hence the matter should be remanded for deciding afresh. 10. This Tribunal vide its Final Order No. 1270/2003 dated 17.9.2003 had set aside the Order-in-Original dated 18.3.1997 passed by the Dy. Commissioner (Customs) on the ground that he had no jurisdiction to act as an adjudicating authority in view of the quantum in dispute. The appeal was allowed by way of remand with a direction to the jurisdictional Commissioner to adjudicate the matter. Therefore, the show-cause notice had to be freshl....