TaxTMI 
TaxTMI 
2007 (11) TMI 308
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....ted 23-4-2003 [2003 (160) E.L.T. 295 (Tri.-Del.)] passed by CEGAT setting aside the penalty levied vide order dated 29-6-2001, order of CEGAT having attained finality, was the complaint liable to be quashed. 5. The brief facts which emerge from the reading of the complaint are the following :- (i) On 24-4-2000, the officers of the Customs (Preventive) conducted a search at the premises bearing No. T-7, (1st Floor), DCM Road, Kishan Ganj, Delhi. At the time of the search, petitioner and one Mr. Mohd. Sohail were present in the said premises. (ii) Upon search of the said premises, three zipper rexine carry bags were found containing 928 pieces of computer parts of foreign origin collectively valued at Rs. 40,32,000/-. The officers conducting the search seized the said goods. (iii) In the statement dated 24/25-4-2000 under Section 108 of the Customs Act, 1962, the petitioner admitted the recovery, seizure and other incriminating facts. He stated that the seized goods were smuggled from Nepal. That he had engaged himself in the business of smuggling at the advice of one Mr. Hashim. That the smuggled goods used to be handed to him by the person working on behalf of Mr. Hashi....
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....session of the appellant of the premises was a tenant or licencee and under whom. The ownership of the premise as observed above, had not been ascertained during the course of investigation. 4. Apart from this, the seized goods (at that time) were not prohibited goods in terms of Section 123 of Chapter IVA of the Customs Act. They were freely marketable and available for sale and purchase in the market. The fact that the goods carried the name of foreign countries such as Japan and Korea was not sufficient to raise legal presumption about the smuggled character of the goods. The initial burden was on the Department to prove that the seized goods were smuggled into India. But in our view, this burden had not been discharged by the Department at all. 5. The alleged confessional statement of the appellant that one Hasim used to smuggle the goods from Nepal and sent to him at Delhi could not be taken to be the conclusive proof of the smuggled nature of the goods. This fact was rather required to be proved by positive and acceptable evidence by the Department which it had failed to prove. More over, the alleged confessional statement was retracted by the appellant when he was prod....
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.... has formed the basis of the judgment of the ACMM has been disagreed to by a learned Single Judge of this court in the decision reported as Sunil Gulati v. R.K. Vohra - 2007 (1) JCC 220. That with the exoneration of the petitioner in adjudication proceedings, the foundation for continuing the prosecution in the criminal complaint no longer exists for the reason adjudication proceedings and criminal prosecution are based on same set of facts/allegations. Reliance was also placed upon under-noted judgments :- (i) P.S. Raja v. State of Bihar - 1996 SCC (Crl.) 897 (ii) Surkhi Lal v. UOI - 2005 (85) DRJ 11 (iii) Sadhna Jain v. P. Sudhir - 2004 (1) JCC 71 (iv) S.K. Sinha v. S.K. Singal and Anr. - 1987 (30) E.L.T. 900 10. On the other hand, learned counsel for the Customs Department who did not appear at the hearing but in the written submissions filed by him has urged that the mere fact that the petitioner has been exonerated in the departmental or adjudicatory proceedings will not entitle him to escape prosecutio....
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.... authorities/Tribunal in adjudication proceedings, one will have to see the reasons for such exoneration to determine whether these criminal proceedings could still continue. If the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. If, on the other hand, the exoneration in the adjudication proceedings is on merits and it is found that allegations are not substantiated at all and the concerned person(s) is/are innocent, and the criminal prosecution is also on the same set of facts and circumstances, the criminal prosecution cannot be allowed to continue. The reason is obvious criminal complaint is filed by the departmental authorities alleging violation/contravention of the provisions of the Act on the part of the accused persons. However, if the departmental authorities themselves, in adjudication proceedings, record a categorical and unambiguous finding that there is no such contravention of the provisions of the Act, it would be unjust for such departmental authorities to continue with the criminal complaint and s....
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....echnical grounds he may be reinstated back in service with other consequential benefit including arrears of salary or other pensionary benefit admissible to him if retired earlier by treating him in service but in other situation where the acquittal is based on benefit of doubt or appreciation of evidence including lack of sufficient evidence or lack of sanction for prosecution or any other technical ground, disciplinary enquiry pending against such Government or public servant cannot be concluded, rather it would be appropriate that the departmental authority may continue with the disciplinary inquiry or hold fresh enquiry in respect of the mis-conduct, which was foundation of criminal case ended in acquittal against such Government servant. If disciplinary inquiry has already been concluded and major punishment, as envisaged under Article 311 of the Constitution of India or under the relevant service rules, has already been awarded to such Government servant, it would not be necessary and appropriate to re-open the same on account of his such acquittal from criminal charges. x x x x x Thus in view of the discussions made herein before, the respondent Government of Utt....
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....tion, fact not proved as rule of evidence not followed, benefit of doubt etc. To put it differently, an acquittal is said to be on merits when it is based on a positive finding of innocence of the accused. 17. In the backdrop of the legal position, it has to be seen in the instant case whether exoneration of the petitioner by the adjudicating authority passes the test of exoneration on merits. 18. It is not in dispute that both the proceedings, i.e. criminal and adjudication are based upon the same set of facts/allegations. 19. A perusal of the order of the CEGAT shows that the petitioner was exonerated because of following reasons :- (i) Department has not been able to establish the ownership of the searched premises. (ii) The initial burden was on the department to prove the smuggled character of the goods and department failed to discharge the same. (iii) Department failed to prove the alleged confessional statement of the petitioner under Section 108 of the Customs Act by leading positive and acceptable evidence. 20. Thus, in essence, the CEGAT exonerated the petitioner because of insufficiency of evidence and failure to prove the statement of the petitione....