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Judgment
We have heard Mr. Subhash Mujlimal Gandhi, who has appeared in person and has contended that he was not served with show cause notice dated 24th March, 1998 for confiscation of the gold and personal goods u/s 111(d), 111(l) of the Customs Act, 1962 (''Act'' for short) and why penalty should not be imposed u/s 112(a)(b) of the Act. He states that he had not authorized Mr. A.K. Srivastava, Advocate to appear and respond to the said notice.
It is stated in the writ petition that the Petitioner is a Non Resident Indian settled in Dubai since 1959 and had arrived from Dubai to IGI Airport, Delhi on 2nd October, 1997. 125 pieces of gold biscuits weighing 14.575 kgs valued at 67,04,500/- and misc. goods valued at Rs. 37,200/- were recovered and seized from him.
The case of the Petitioner is that he was monitored right from the aerobridge and intercepted at the baggage belt and thus prevented from approaching the Red Channel Counter to declare the goods and to pay the duty. The case of the Respondent, Department of Customs, to the contrary is that the Petitioner had not declared the said goods.
The contention of the Petitioner that he was not served with the show cause notice dated 24th March, 1998 does not impress us. One Mr. A.K. Srivastava, Advocate had filed a reply to the show cause notice. It is stated in the order/letter dated 19th May, 2010 of the Joint Commissioner of Customs that personal hearing was given to the Petitioner which was also attended by Mr. A.K. Srivastava, Advocate. After considering the reply and contentions raised by the Petitioner, the adjudicating authority vide order No. 41/98 dated 11th January, 1998 ordered absolute confiscation of 125 gold biscuits weight 14.575 valued at 67,04,500/- u/s 111(d) and 111(l) of the Act. The adjudicating authority had also ordered confiscation of misc. goods valued at Rs. 37,200/- but gave option to the Petitioner to redeem the same on payment of redemption fine of Rs. 50,000/-. Personal penalty of Rs. 5 lakhs was imposed on the Petitioner u/s 112(a)(b) of the Act.
The Petitioner preferred an appeal but the same was dismissed by the Commissioner (Appeal) by the order dated 24th May, 2005. Thereafter, the Petitioner preferred a revision petition which was decided vide order No. 358/05 dated 6th December, 2005. The Central Government modified the order in original dated 11th January, 1998 and an option was given to the Petitioner to redeem the seized gold on payment of redemption fine of Rs. 10.5 lacs. The personal penalty of Rs. 5 lacs was upheld.
In case the Petitioner was not served with the show cause notice and the Petitioner had not authorized Mr. A.K. Srivastava, Advocate to file reply, he would have raised the said contention in the appeal and the revision. Not only this, the Petitioner has complied with the order passed by the Central Government dated 6th December, 2005 and paid the redemption fine on 10th January, 2006 of Rs. 53,55,688/- @ 55% of the gold value. He did not question and challenge the order of the Central Government dated 6th December, 2005 till the filing of the present writ petition in 2011. What has prompted the Petitioner to file the present petition is the fact that he has been ''acquitted'' in the criminal prosecution. The criminal prosecution is a separate proceeding and the standard of proof required is different. Indian Evidence Act is applicable to criminal prosecution and Code of Criminal Procedure 1973 applies. Copy of the order passed by the learned ACMM ''acquitting'' the Petitioner has not been placed on record. Proceedings under Sections 111 and 112 of the Act have attained finality and the Petitioner paid the penalty and redemption fine in 2006. Gold was released thereafter.
We do not find any merit in the present petition and the same is dismissed in liming.