C. SRINIVAS Vs. COMMISSIONER OF CUSTOMS, HYDERABAD-II

JUDGEMENT

(1.) BOTH these appeals arise from a common OIO No. 04/97 -Cus., dated 31 -10 -1997 passed by the Commissioner of Customs & Central Excise, Hyderabad. He has ordered for absolute confiscation of 23 Gold Biscuits and 2 Gold Ingots valued at Rs. 14 lakhs under Section 111(d) of Customs Act. He has imposed penalty of Rs. 5 lakhs on Shri C. Srinivas and Rs. 1 lakh on Shri R. Kailash under Section 112(b) of the Customs Act. There is also a penalty of Rs. 10,000/ - on one Shri Popat whose appeal is not listed. The gold biscuits were alleged to have been seized from the shop of the appellants on the belief that the said gold biscuits were of foreign origin and the appellants were not in a position to discharge their burden that the same had been imported licitly. The appellants had produced baggage receipt No. 1104, dtd. 5 -5 -1995, issued by the Customs authority of Madras Airport in favour of Mastan Ahmed Jumairy, who confirmed about having brought the said gold in terms of the said baggage receipt. He had admitted having sold the said gold biscuits to one Shri Maggesh and had handed over the said baggage receipt. The appellants had relied on these documents to prove the licit import of the seized gold from their shops. However, the Commissioner did not accept the documents and ordered for absolute confiscation and imposed penalty.

(2.) THE Revenue had also filed a criminal case before the Special Judge for Economic Offences in CC No. 20 of 1999. the trial was adjudicated and after due trial, judgment dated 15 -2 -2001 was passed by the Special Judge for Economic Offences acquitting the assessees. It has been categorically held that the assessees have proved the licit import of the seized gold and the accused were discharged. A copy of the judgment passed by the Special Judge for Economic Offences is produced. From the said judgment, it is very clear that the gold was not seized by the Customs Officers but it was seized by the Police Officers. It was also established that the seized gold were duty paid and brought into India after discharge of Customs duty. The Court has accepted the defence of the assessees and acquitted them of the charge of being in possession of illicit gold which is the subject -matter of the impugned order as smuggled and non -duty paid ones.

(3.) THE learned Counsel Shri V.J. Sankaram submits that in view of the acquittal given by the Criminal Court, the appeal is required to be allowed. In this regard, he relies on the Mysore High Court judgment rendered in the case of P. Channappa v. Mysore Revenue Appellate Tribunal, Bangalore and Others - AIR 1966 Mysore 68 (V 53 C 18) wherein it has been held that when an enquiry into the charges by the Court leads to acquittal then subsequent enquiry of the same charge by the Tribunal is not competent. Reliance is placed on a similar matter rendered by the Chennai Bench in the case of Kirit Parekh v. CCE and C, Hyderabad - 2001 (136) E.L.T. 955 (Tri. - Chennai) wherein the acquittal given in a prosecution case has been accepted for setting aside the penalties. Similar order has been passed by the Chennai Bench in the case of S. Duraiappa and Others v. CC, Chennai by Final Order Nos. 1239 to 1247/2005, dated 13 -9 -2005. The learned Counsel seeks for setting aside the penalty and for an order to the Revenue to handover the seized gold.