Judgment :- The Order of the Court is as follows :- This appeal filed by the Assistant Collector, Special Investigation Bureau, Customs House, Madras is directed against the Judgment dated 17-5-1989 in E.O.C.C. No. 832/87 on the file of the Additional Chief Metropolitan Magistrate - E.O.I., Egmore, Madras acquitting the respondents in respect of the offence under Section 135(1)(a) read with 135(1)(ii) of the Customs Act. 2.The accusation made by the complainant/appellant in the complaint filed against the respondents (A1 to A3) is that A1 company had a private bonded warehouse licensed by the Customs Department in the company's factory premises. Between 1982 and 1983, the company imported various raw materials for manufacturing insecticidal formulations and kept at the private bonded warehouse and company clandestinely removed the same between 1982 and 1986 from the said bonded warehouse without the knowledge of the customs authorities and thereby evaded payment of duty to the tune of Rs. 15, 92, 335/-. 3.The facts leading to the filing of the complaint by the appellant against the respondents are as follows :- (a) The first respondent (A1) is the company. The second and third respondents are the Managing Directors of the above Company. The company was engaged in manufacturing of the insecticidal formulations. The company had a private bonded warehouse in the company's factory premises itself licensed by the customs department. The company imported chemicals and kept the same in the said bonded warehouse. As and when the goods are imported, the same would be deposited in the bonded warehouse, after filing into bond bills of entry containing the materials bonded. It is only after payment of duty, the materials so bonded could be removed from the bonded warehouse. The bonded warehouse has two locks, one is the customs lock and the other is the importer's lock. At the time when the goods are required to be cleared from the bonded warehouse, after payment of appropriate duty, the customs official would proceed to the bonded warehouse with the key of the customs lock. After customs lock is opened, the importer's lock is then to be opened. Only thereafter, the goods will be released.(b) On 29-6-1987, the customs official received information that the company had clandestinely removed the goods from its private bonded warehouse without payment of the customs duty. After customs lock is opened, the importer's lock is then to be opened. Only thereafter, the goods will be released.(b) On 29-6-1987, the customs official received information that the company had clandestinely removed the goods from its private bonded warehouse without payment of the customs duty. Therefore, the official went and inspected the said bonded warehouse and found that no package was available in the bonded warehouse. When the second respondent was questioned, he gave a voluntary statement before the customs official that due to certain financial difficulties faced by the company, the chemicals which were kept in the warehouse were removed by them without payment of the duty and that the said removal commenced in 1982 and it continued till 1986. On 30-6-1987, the third respondent, another Managing Director, also gave a voluntary statement admitting the clandestine removal of the imported chemicals from the bonded warehouse and sale of the same without payment of the duty. (c) It is also pointed out during the course of enquiry that they fabricated some clearance certificate, as if they had obtained the same from the customs department on payment of the duty for removal of the materials from the bonded warehouse. (d) On 18-8-1987, a show cause notice was issued to A1 to A3 with reference to the above act. Despite the receipt of the show cause notice, there was no reply from A1 to A3. However, a personal hearing was given to the respondents who came and appeared before the Adjudicating Authority and admitted the contents of their voluntary statements made to the customs official on 29-6-1987 and 30-6-1987. Thereafter, by the order dated 26-10-1987, the Collector of Customs imposed penalty on the respondents. However, the said penalty amount also has not been paid. (e) In the said situation, the complaint was filed by the appellant before the trial court, with in turn conducted trial and acquitted the accused. 4.Challenging the acquittal, Mr. Sivanandam the learned Counsel appearing for the appellant would strenuously contend that the judgment of acquittal is not based upon the valid reasonings and that the trial court ought to have convicted the accused, as there are lot of materials produced before the court which are reliable and acceptable. 5.On the other hand, Mr. 4.Challenging the acquittal, Mr. Sivanandam the learned Counsel appearing for the appellant would strenuously contend that the judgment of acquittal is not based upon the valid reasonings and that the trial court ought to have convicted the accused, as there are lot of materials produced before the court which are reliable and acceptable. 5.On the other hand, Mr. Sundar, the learned Counsel appearing for the respondents, with equal vehemence, would contend that though the reasonings given by the trial court for acquitting the accused are not sound, the charge under Section 135(1)(a) read with 135(1)(ii) of the Customs Act could not be sustained, inasmuch as mere removal of the chemicals from the bonded warehouse, which were kept after assessment, would not amount to evasion of duty so as to attract Section 135(1)(a) of the Act. 6.I have heard the Counsel for both sides. 7.At the threshold, I shall state that the reasonings given by the trial court, as fairly admitted by the learned Counsel appearing for the respondents, to the effect that no offence could be made out, as the bond period of one year has already expired and that the predecessor of Customs Officer was not examined, are, in my view, perfectly unjustified. 8.As a matter of fact, Exs. P-8, P-16 and P-22, the voluntary statements given by the respondents to the Customs Officer on 29-6-1987 and 30-6-1987, would clearly prove that the accused had clandestinely removed the chemicals from the bonded warehouse due to financial difficulties and in order to avoid payment of duty. 9.It is also seen from Ex. P-29, the adjudication order, that the accused did not choose to give any reply to the show cause notice dated 18-8-1987 sent by the Adjudicating authority and during the personal hearing, the accused had categorically admitted the removal of the materials from the bonded warehouse without has knowledge of the customs official in order to evade payment of duty and then sold the same. 10. It is also to be noted that in their statement before the Adjudicating authority, the respondents had also admitted that they gave voluntary statement confessing the entire thing to the Customs Officer on 29-6-1987 and 30-6-1987. This order also would make it clear that the adjudicating authority analysed all the materials as against the respondents and imposed penalty, for the clandestine removal for evasion of duty. This order also would make it clear that the adjudicating authority analysed all the materials as against the respondents and imposed penalty, for the clandestine removal for evasion of duty. It is admitted by the Counsel for the respondents that even the respondents have not so far paid the penalty. 11.While pointing out sections 46, 17, 57, 58, 60, 62, 68, 71 and 72 of the Customs Act, the learned Counsel for the respondents would contend that the prosecution under Section 135 of the Act with reference to the evasion of duty may not be permissible under law, inasmuch as the other actions as contemplated under Sections 72 and 111 of the Act are available. 12.In reply to this submission, Mr. Sivanandam would point out that even though the other actions, namely, confiscation of goods under Section 111 of the Act and detention and sale of goods under Section 72 of the Act are available, it cannot be said that the prosecution under Section 135 of the Act is prohibited. 13.I find sufficient force in this contention. Admittedly, the imported goods, which were kept in the bonded warehouse were not available and the same had been removed long back. Therefore, the question of confiscation of the said imported goods under Section 111 of the Act may not arise in this case. 14.Similarly, under Section 72 of the Act, the Officer concerned may demand the owner of such goods directing him to pay full amount of the duty chargeable on account of such goods together with all penalties and in the event of failure of such direction, the Officer concerned may detain the imported goods and sell the same. This provision also would not come into play in this case, since the goods improperly removed from the bonded warehouse were not available. 15.On the other hand, the adjudicating authority has properly exercised its power under Section 124 of the Act by issuing show cause notice before imposing the penalty, as indicated earlier. The respondents admitted their liability in the earlier statements made before the authority. Under those circumstances, the adjudicating authority imposed the penalty on the respondents. As stated earlier, even the said penalty has not been paid yet. The respondents admitted their liability in the earlier statements made before the authority. Under those circumstances, the adjudicating authority imposed the penalty on the respondents. As stated earlier, even the said penalty has not been paid yet. 16.In these circumstances, it can very well be concluded that the respondents had clandestinely removed the imported goods and had committed the evasion of duty chargeable thereon by not getting the clearance certificate from the customs official after observing the formalities required to be done. Thus, it is clear that the respondents are liable to be convicted and accordingly, they are convicted for the charge under Section 135(1)(a) read with 135(1)(ii) of the Customs Act. 17.The learned Counsel for the respondents was questioned with reference to sentence. It is submitted on behalf of the respondents that they are still in financial difficulties and that is the reason why they are not able to pay the penalty yet imposed by the adjudicating authority. Considering the facts and circumstances of the case and the long lapse of years in between, I impose fine of Rs. 10, 000/- on A1 and Rs. 5, 000/- each on A2 and A3. 18.Therefore, the appeal is allowed. The impugned judgment is set aside. A1 to A3 are convicted for the aforesaid offence and sentenced to pay the fine referred to above, in default to undergo R.I. for one year. The time for payment of fine is one month from today.