TaxTMI 
TaxTMI 
2024 (11) TMI 1478
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....: SRI.T.C.KRISHNA, DSGI INCHARGE, SRI.SUNIL KUMAR KURIAKOSE-SR.GP, SRI.JAISHANKER V.NAIR-SC FOR ED, SRI.V.GIRISHKUMAR-SC FOR CENTRAL BOARD OF EXCISE AND CUSTOMS, JUDGMENT The writ petition is filed seeking the following reliefs:- "(i) To declare that the action on the part of the 2nd respondent in issuing Exhibit P9 Order under Section 5(1) of Prevention of Money-Laundering Act, 2002 provisionally attaching the two fixed deposits of the petitioner to the tune of Rs.2,84,50,000/being the value of 10KG of gold bars that has already been confiscated by the Respondent No.4 under Section 121 of the Customs Act, 1962 as per Exhibit P6 Order- in-Original is without jurisdiction, arbitrary, illegal, disproportionate and violative of the fundame....
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....rom the office of the 4th respondent was received stating that the gold bars sold to the petitioner was part of the gold illegally diverted by the 5th respondent from its unit in the Special Economic Zone (SEZ) to the Domestic Tariff Area (DTA) and since payment for the gold purchased is outstanding, an amount of Rs.2,84,50,000/- should be deposited, being the sale-proceeds of the smuggled/diverted gold. This was followed by another letter, directing the petitioner to furnish bank guarantee for an amount of Rs.29,60,000/-. In compliance of the directions, the petitioner executed an indemnity bond for Rs.2,84,50,000/-, authorising the Customs Department to recover the amount towards the alleged sale-proceeds of the gold and also furnished ba....
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....d deposits were provisionally attached as per Ext.P9, in purported exercise of the power under Section 5(1) of the PML Act. Later, Ext.P10 complaint was filed before the 3rd respondent Adjudicating Authority and by Ext.P11 notice, petitioner was called upon to show cause why the provisional order of attachment should not be confirmed. The writ petition was filed at that stage. 3. Heard, Advs.P.A.Mohammed Shah for the petitioner, Adv.T.C.Krishna, the DSGI, Adv. V.Girish Kumar, Standing Counsel for the Central Board of Excise and Customs, Adv.Jaisankar V. Nair, Standing Counsel for the Enforcement Directorate and Adv.Baby M.A for the 5th respondent. 4. Learned counsel for the petitioner put forth the following contentions; Exhibit P9 order ....
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....that the writ petition is premature. The petitioner is bound to contest the matter before the Adjudicating Authority and if aggrieved by the decision of the Adjudicating Authority, before the appellate and revisional authorities under the PML Act. According to the Standing Counsel, no question of double jeopardy arises, since the proceedings are under two enactments intended to deal with different situations and offences. In the case at hand, the proceedings under the Customs Act are in relation to the smuggling of gold from the SEZ to the DTA. On the other hand, the attachment and adjudication proceedings under the PML Act is with respect to the 'proceeds of the crime' derived as a result of the criminal activity. The contention th....
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....risdiction in which the person must have been prosecuted. The said prosecution must be valid and not null and void or abortive. Secondly, the conviction or acquittal in the previous proceeding must be in force at the time of the second proceeding in relation to the same offence and same set of facts, for which he was prosecuted and punished in the first proceeding. Thirdly, the subsequent proceeding must be a fresh proceeding, where he is, for the second time, sought to be prosecuted and punished for the same offence and same set of facts. In other words, the clause has no application when the subsequent proceeding is a mere continuation of the previous proceeding, for example, where an appeal arises out of such acquittal or conviction. In ....