Commissioner of Customs (Import) Customs House v. M/s. A. Mohammed & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31.01.2008CORAM:THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANC.M.A.No.2367 of 2007Commissioner of Customs (Import)Customs HouseChennai-600 001. .. Appellant/Respondentversus1. M/s.A.Mohammed No.73, 4th Cross Street M.K.B.Nagar, Vyasarpadi Chennai-600 039.2. Customs Excise & Service Tax Appellate Tribunal South Zonal Bench Shastri Bhawan Annexe 1st Floor, 26, Haddows Road Chennai-600 006. .. RespondentsPRAYER: Civil Miscellaneous Appeal filed under Section 130 of theCustoms Act, 1962, against the Final Order No.1059/2006 dated9.11.2006 on the file of the Customs, Excise and Service Tax AppellateTribunal, South Zonal Bench, Chennai arising out of order in OriginalNo.49/2002 dated 28.03.2002 on the file of the Commissioner of Customs(SEA) Chennai.For appellant :Mr.T.ChandrasekaranSenior Standing Counsel for Central GovernmentJUDGMENT(Judgment of the Court was delivered by K.RAVIRAJA PANDIAN,J.)Against the order of the Customs, Excise and Service TaxAppellate Tribunal, South Zonal Bench, Chennai, dated 9.11.2006made in Final Order No.1059/2006, the Commissioner of Customs(Import) has filed the present Appeal under Section 130(1) of theCustoms Act, 1962, by formulating the following substantial questionsof law: https://hcservices.ecourts.gov.in/hcservices/ (i) Whether the observation of Customs, Excise and Service taxAppellate Tribunal that the order of the Court exonerating anaccused under Section 239 of Cr.P.C. was adequate to exonerate theaccused in the adjudication proceedings is correct and valid inlaw, especially when the accused had also participated in theadjudication proceedings? and(ii) Whether the findings of the Customs, Excise and Service TaxAppellate Tribunal in its Final Order No.1059 of 2006 dated9.11.2006 is sustainable on the ground that the first respondent isdischarged as not guilty of the offences in the criminalproceedings is enough to set aside the impugned order dated28.3.2002?2. It is the case of the appellant that based on specificintelligence, the officers of the SIIB detained two containers UACU-295224 and TEXU-289984-6 at Chennai Port. On examination, thecontainers were found to contain 7,006 Kgs. of sandalwoodlogs/billets, 529 Kgs. of sandalwood small rough pieces and 4,20,000pieces of peacock feathers in respect of the first container, and6,169 Kgs. of sandalwood logs/billets, 1,467 Kgs. of sandalwood smallrough pieces and 238 Kgs. of Mica powder, in respect of the secondcontainer bearing No.TEXU-289984-6. The total value of thesandalwood, peacock feathers and mica powder in both the containerswere estimated to be Rs.64,27,750/-, Rs.16,80,000/- and Rs.3,570/-respectively. The goods were seized under Mahazar on 30.5.1993. 3. On completion of the investigation, a show-cause notice wasissued to the first respondent herein along with some other personswho were found to have been involved in smuggling the above-saidgoods. On adjudication by the Commissioner of Customs (Sea), an orderof absolute confiscation of 15.171 Metric Tonnes of sandalwood,4,20,000 pieces of peacock feathers and 238 Kgs. of mica powdertotally valued at Rs.81,11,320/- was passed and the same wererecovered. Further, a penalty of Rs.5,00,000/- was imposed on thefirst respondent among others. Aggrieved by that order, the firstrespondent filed an appeal before the Customs, Excise and Service TaxAppellate Tribunal, which, by its Final Order No.1059/2006 dated9.11.2006, allowed the appeal on the premise that the criminal caseinitiated at the instance of the appellant has ended in acquittal infavour of the first respondent. 4. It is contended by the learned counsel appearing for theappellant that the SIIB had booked the case on Specific Intelligencethat sandalwood was being smuggled out in the guise of export cargo bythe first respondent. The officers of the SIIB detained the containerand unearthed the goods, after a detailed adjudication, the originalauthority confiscated the entire goods and imposed a fine ofRs.5,00,000/- against the first respondent on the ground that he wasactively involved in smuggling the goods, which factum has beentotally lost sight of by the Tribunal while allowing the appeal filedby the first respondent. https://hcservices.ecourts.gov.in/hcservices/

5. We heard the arguments of the learned counsel and perusedthe material on record.6. It is on record that as against the action taken by theappellant for prosecuting the first respondent, the first respondentfiled an application under Sections 397 and 401 of the Cr.P.C. beforethis Court. Upon a full-fledged enquiry, this Court discharged thefirst respondent under Section 239 of the Cr.P.C. This Court has heldthat the first respondent was dealing with red sander wood during therelevant period of time. The goods detained by the Department wereonly sandal wood, sandal wood chips peacock feathers and mica powderand there is no basis or material available to the Department eitherto entertain any suspicion or to implicate the first respondent in thealleged smuggling of sandal wood, sandal wood chips, peacock feathersand mica powder. By recording a categorical finding that theDepartment has not made out a prima facie case against the firstrespondent, this Court discharged the first respondent from thecharges levelled against him. 7. It is an admitted case that there is no variance in thecharges levelled and the acquisition made against the first respondentherein before the Customs Excise and Service Tax Appellate Tribunal,which was the subject matter of the Criminal Revision before thisCourt in which the first respondent was discharged. The basicmaterial which formed the basis for levelling the charges against thefirst respondent herein, before this Court in the criminal proceedingsand before the Tribunal are verbatim same, neither there is a deletionnor addition in it. In those factual circumstances of the case, theTribunal allowed the appeal by stating that on the very same chargeslevelled against the first respondent, this Court, in the CriminalRevision, discharged him from all the charges and hence, the firstrespondent cannot be thrusted with penalty in a sum of Rs.5,00,000/-,as there was no material to connect him with the alleged charges.8. Learned counsel for the appellant sought to argue that thedepartmental proceedings cannot be compared with a criminal proceedingand for proving departmental charges, the preponderance of probabilityis enough, whereas in criminal proceedings, the charges have to beestablished beyond all reasonable doubt. We are not able tocountenance the argument of the learned counsel for the appellant, asthe charges are one and the same, and as against the action sought tobe taken under the Customs Act, this Court has discharged the firstrespondent from the charge of attempting to export the goods againstthe provisions of the Customs Act. Hence, the contention raised bythe learned counsel for the appellant deserves to be rejected and isaccordingly rejected.When the attempt of the appellant to establish the chargeslevelled against the first respondent has failed and this Court hasalso categorically viewed that there was absolutely no materialadduced by the appellant to connect the first respondent in the https://hcservices.ecourts.gov.in/hcservices/ alleged smuggling activities, we are of the view that the Tribunal iscorrect in allowing the appeal filed by the first respondent and thereis no question of law, much less substantial question of law arisingto admit this appeal. Accordingly, this Civil Miscellaneous Appeal isdismissed. There will be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarksvTo: 1. The Commissioner of Customs (Import) Customs House, Chennai-600 001.2. The Customs Excise & Service Tax Appellate Tribunal South Zonal Bench Shastri Bhawan Annexe 1st Floor, 26, Haddows Road Chennai-600 006.3. The Commissioner of Income Tax (SEA) Chennai.1 cc To Mr.T.Chandrasekaran, Advocate, SR.4647.C.M.A.No.2367 of 2007 NG(CO)RVL 18.02.2008