TaxTMI 
TaxTMI 
2005 (9) TMI 204
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.... and others were recorded. These persons included S/Shri R. Ravi [Appellant in C/1452/1998], M. Udayakumar [Appellant in C/1454/1998], N. Ramesh [Appellant in C/1453/1998], N. Suresh [Appellant in C/1455/1998], M. Muthusingaram [Appellant in C/1462/1998], S. Ramamoorthy [Appellant in C/1461/1998 and C/70/99], Duraiappa [Appellant in C/1451/1998] and T.R. Kannan [Managing Director of M/s. Jesudasans Pvt. Ltd.]. The Customs officers also searched the office premises of the company and recovered certain documents. The residential premises of some of the above persons were also searched but nothing was recovered. On the basis of the evidence gathered in the investigations, the department issued a show-cause notice to the appellants and others proposing to confiscate the seized vessel, ball bearings, etc. and to impose penalties on the noticees. The show-cause notice alleged that the vessel had been used for smuggling the ball bearings of foreign origin into India; that on its arrival at Valinokkam S/Shri R. Ravi, Duraiappa and Udayakumar cut open the cavity in the hind part of the vessel by engaging gas cutter; that the gas cylinder and gas torch employed for the purpose were brought i....
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....scellaneous Order No. 387/2005 dated 10-8-2005, by virtue of which the deceased's wife, son, daughter and mother are co-appellants in the appeal. 4. In Appeal No. C/69/1999 filed by M/s. Jesudasans Pvt. Ltd., it was submitted by ld. Senior Advocate that the confiscation of the vessel by the Commissioner was inconsistent with his own finding. The Commissioner had found that neither the Managing Director nor any of the Directors of the company had the knowledge that the ball bearings had been concealed in, or removed from, the ship. Accordingly, ld. Commissioner exonerated them from penal liability. In this view of the matter ld. Senior Advocate argued, there was no justification for confiscation of the vessel. After perusing the Commissioner's order, we have found the counsel's submissions to be factually correct. We have also noticed that there is no finding in the impugned order that the company had any such knowledge as above. In the absence of a finding that the vessel was used for smuggling of ball bearings with the knowledge or connivance of the company or its agents, Section 115 of the Act was not attracted. We have accordingly taken the view that the order of confiscation ....
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....sp; State of Tamilnadu & Another v. M. Jayapal & Others - 2005 Writ L.R. 314 Ld. Counsel has also cited the Tribunal's orders in Tulsidas V. Patel v. Commissioner [2000 (119) E.L.T. 616] and Kirit Parekh v. Commissioner [2001 (136) E.L.T. 955]. Relying particularly on the apex Court's judgment in Gopaldas's case, ld. Senior Advocate has argued that the appellants having rebutted the presumption under Section 138A of the Customs Act and having been acquitted by the criminal court cannot be penalised in adjudication proceedings. It was submitted that the facts and evidence in the criminal proceedings and in the adjudication proceedings were substantially the same and therefore it would be unjust, unfair and oppressive to penalise the appellants in adjudication proceedings in spite of their acquittal on merits by the criminal court. It was only when a court without evaluating the evidence on record passes a judgment of acquittal on technical grounds that the adjudication proceedings can be allowed to continue against the accused. In this connection, it was pointed out that the criminal court's judgment of acquittal giving the benefit of doubt to the accused could not be equated....
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....ourt's judgment in Rekhi Road Liners's case (supra) and also relied on the following decisions: (i) Gujarat Travancore Agency v. Commissioner of Income Tax - 1989 (42) E.L.T. 350 (S.C.) (ii) Comex Co. v. Collector of Customs - 1997 (96) E.L.T. 526 (Mad.) 6. Ld. SDR, thus, argued for proceeding with these appeals, regardless of the criminal court's findings. It was also pointed out that the criminal court's judgment had already been appealed against and the matter is pending with the appellate court. In the circumstances, the criminal court's judgment could not be considered to have attained finality and consequently the present proceedings were not affected by anything contained in the said judgment. In answer to this argument of ld. SDR, ld. Senior Advocate submitted that, there being no stay of operation of the acquittal of the appellants, the criminal court's judgment carried precedent value. It was also suggested that, in the event of the said judgment being set aside by the appellate court, it was open to the department to revive the present proceedings. In this connection, ld. Seni....
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....bsp; Statement of Shri T.R.S. Vijay dated 12-8-94 14. Statement of S/Shri M. Muthusingaram and Ramamoorthy dated 4-8-94 15. Statement of Sri T.R. Kannan dated 16-8-94 After considering the evidence on record and the submissions made on behalf of the parties, the Commissioner passed the order of confiscation and penalties. The absolute confiscation of the ball bearings is under clause (d) of Section 111 of the Customs Act, whereunder any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under the Act or any other law for the time being in force, are liable to confiscation. The penalties are apparently under clause (b) of Section 112 of the Customs Act, whereunder any person who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with, any goods which he knows or has reason to believe are liable to confiscation under Section 111, is liable to a penalty. 8. The c....
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.... above judgment of the Additional Chief Judicial Magistrate. We are told that there is no stay of operation of the acquittal, by the appellate court. Hence, as rightly submitted by ld. Senior Advocate, the judgment of the criminal court is in operation. Against this background, we are coming to grips with the issue whether these appeals should be disposed of in the light of the criminal court's judgment. 9. We have found that the criminal court's order of acquittal is one passed on merits after appreciating all the evidence adduced by the prosecution and the defence. It was held by the Madras High Court in the case of State of Tamilnadu v. M. Jayapal (supra) after taking into account the Supreme Court's ruling in Sulekh Chand and Paul Anthony (supra) that a judgment of acquittal giving the benefit of doubt to the accused could not be equated to judgment of acquittal on technical grounds and that it was only when a court without evaluating the evidence on record passes a judgment of acquittal on technical grounds that it could be said that the judgment was on technical grounds. On the basis of this ruling it could be safely said that the judgment passed by the learned Additional C....
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....l to the Supreme Court. The Apex Court found that the appellant had been acquitted in the criminal case on the same set of facts and evidence as used in the disciplinary proceedings and accordingly, the court held that it would be unjust, unfair and oppressive to allow the departmental proceedings to stand after the order of acquittal passed by the criminal court. 10.2 In Gopaldas' case, the Apex Court was considering the question whether the order of confiscation of gold passed by the adjudicating authority under the Gold (Control) Act, 1968 should be allowed to stand against an order of acquittal of the appellant passed by a criminal court. It was held that mere acquittal by a Magistrate could not in every case result in setting aside of order of confiscation passed by the competent authority. However, where the accused rebutted the statutory presumption under Section 98B of the Gold (Control) Act, the order of confiscation of stand against the acquittal. The provisions of Section 138A of the Customs Act, referred to by ld. Senior Advocate, are pari materia with those of Section 98B of the Gold (Control) Act (since repealed). The provisions enabled the court to presume the exis....
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....cused physically dealt with 1,31,076 ball bearings. Hence the court had no occasion to presume anything against the accused in terms of Section 138A(1) and, therefore, the accused had no liability to rebut any presumption under the said provision. This is because, as ruled by the Apex Court in Gopaldas's case, it is only after the prosecution has adduced clear evidence of the accused having physically dealt with the offending goods that the accused would assume the burden of proving that they so dealt with the goods without mens rea, i.e, without the knowledge or belief that the said goods were liable to confiscation under Section 111. Thus, for the appellants, the present case stands on a stronger footing than Gopaldas's case wherein the prosecution could prove the fact that the accused was in possession of gold but the presumption of mens rea in relation to the said fact was rebutted by the accused. 10.3 We have found that the offence charged against the appellants in both the adjudication and prosecution proceedings is substantially the same. Both the cases are based on the same set of facts. The evidence considered by the adjudicating authority and the criminal court is, by a....