ORDER
Chittaranjan Satapathy, Member (T)
1. Heard both sides. The appellant is a partner of M/s. M. Walters & Co. who are a member of the Gems & Jewellery Export Promotion Council. The appellant was intercepted on 18.10.02 at the Kolkata International Airport from immigration counter and he and his “checked-in-baggage” were searched by the officials of the Air Intelligence Unit resulting in recovery of 44 items of gold and silver jewellery studded with precious and semi-precious stones.
2. Under the impugned Order, the adjudicating Commissioner has confiscated these items as these were not declared and were being illegally exported. However, the appellant has been allowed to redeem the said goods on redemption fine of Rs. 5.00 lakhs (Rupees five lakhs) and in addition, a penalty of Rs. 1.00 lakh (Rupees one lakh) has been imposed.
3. Shri T. Hussain, learned Advocate appearing for the appellants takes a preliminary objection that since the adjudicating Commissioner has also sanctioned prosecution on 20.8.03, he has a bias and he should not have decided the adjudication case. Shri J.K. Jha, learned S.D.R. for the Department counters the preliminary objection stating that under the law, the Commissioner of Customs is the sanctioning authority for prosecution in criminal cases triable in the trial Magistrate’s Court and no cognisance of a criminal case under the Customs Act can be taken without such sanction, which is satutorily required. By according such sanction, Shri Jha contends, the Commissioner has only fulfilled a statutory duty and the criminal case is to be decided thereafter by the competent magistrate trying the case. Hence, it cannot be said that the Commissioner has prejudged the case. Moreover, the case which is tried in the court of law relates to alleged criminal action on the part of the accused, whereas the adjudication done by the Customs Officials is in relation to offending goods. These two proceedings are completely separate and therefore, just because the Commissioner has accorded sanction of prosecution in the criminal case, he cannot be held to have a bias while adjudicating the case in respect of the offending goods.
4. After considering the arguments from both sides, we find force in the contentions advanced by the learned S.D.R. The criminal proceedings in the competent court of law is a separate proceedings from the adjudication proceedings in relation to the offending goods. Moreover, according statutory sanction for initiation of a criminal case, in no way debars the adjudicating Commissioner from adjudicating the case. In fact, both the statutory duties, to sanction prosecution, and to adjudicate the cases, are cast upon the jurisdictional Commissioner under the law and the same cannot be done by some one else who has no jurisdiction over the Customs formation in question. As such, we reject the preliminary objection raised by the learned Advocate regarding the competence of the adjudicating Commissioner to pass the impugned Order.
5. As regards the merit of the case after hearing both sides, we find that the appellant is a person being a partner in a partnership firm holding import-export code number. He is reasonably expected to know the import-export formalities. In case he was carrying the impugned goods as samples as a part of his export trade to Bangladesh, as claimed, he should have declared the same and followed the Customs formalities for exporting these items rather than keeping these items concealed in his body and in his baggage. In the circumstances of the case, we have no doubt in our mind that the appellant was guilty of misdeclaration and attempt to smuggle the impugned goods. However, considering the submissions made and the fact that the attempt to export was foiled by the vigilant Customs Officials and no illegal export could take place as a result, we reduce the redemption fine to Rs. 2.00 lakhs (Rupees two lakhs) and we reduce the penalty to Rs. 50,000.00 (Rupees fifty thousand). The appeal is otherwise rejected.
Operative part of the Order was pronounced in the open court.