JUDGMENT 1. - This writ petition has been filed by the petitioner Rikhab Chand Jain inter alia with the prayer that the adjudicatory order dated 7.5.1996 passed by Commissioner Customs and Central Excise, Jaipur and the judgement dated 23.6.2000 passed by Customs Excise & Gold (Control) Appellate Tribunal (for short-CEGAT) be set aside and further prayer has been made for issuance of writ of mandamus or writ of certiorari directing the respondents to return 294 silver ingots weighing 252.177 kgs valued at Rs. 17,88,944/- to the petitioner. 2. Factual matrix of the case is that the Customs and Central Excise Officers, Pali intercepted one Maruti Van during the night intervening 26.9.1992 and 27.9.1992 at 10.00 PM. Two persons, namely Ayub Khan and Mohammad Illayas, were found occupying the van at the time of interception. On search of the Maruti van, 8 gunny cloth bags containing 294 silver chaurasas were found. The Maruti Van was taken to the Police Station, Pali. Silver chaurasas were formally recovered by the police, however, subsequently they were handed over to customs authorities. A criminal complaint for offence under section 135 of the Customs Act was filed against 14 persons including the present petitioner in the court of Special Magistrate, Economic Offences, Jodhpur. The learned Special Magistrate by his order dated 12.2.2002 discharged all the accused persons, including the present petitioner and also directed that seized silver be handed over to him. When the seized silver was not returned to the petitioner, he filed another application before the learned Special Magistrate, Jodhpur, who by order dated 7.3.2002 reiterated his earlier direction for handing over the seized silver chaurasas to the petitioner on furnishing suitable surety bonds and also simultaneously directed that if silver had already been got melted, cash equivalent to its price may be given to the petitioner. The Superintendent, Customs and Central Excise, Jaipur filed revision petition against the orders dated 12.2.02 and 7.3.02 passed by the learned Special Magistrate. This revision petition was partly allowed by Additional Sessions Judge No.2, Jodhpur and the orders dated 12.2.02 and 7.3.02 directing return of the seized silver articles to the petitioner were set aside, however, the order of discharge was maintained. 3. This revision petition was partly allowed by Additional Sessions Judge No.2, Jodhpur and the orders dated 12.2.02 and 7.3.02 directing return of the seized silver articles to the petitioner were set aside, however, the order of discharge was maintained. 3. Separately, the Commissioner Customs and Central Excise issued a show cause notice to the petitioner on 19.3.1993 as to why the seized silver be not confiscated under Section 111 of the Customs Act and penalty be not imposed on the petitioner under Section 112 of the Act. Petitioner filed reply to the show cause notice and contested the matter. However, by the impugned adjudication order dated 7.5.1996, Commissioner directed confiscation of the silver under Section 111 of the Act and also imposed penalty on as many as 14 persons including penalty of Rs. 50,000/- on the present petitioner. Petitioner filed appeal against the aforesaid order before the CEGAT under section 129-A of the Act. In appeal, challenge was made by the petitioner only to the order of penalty and the order of confiscation was not assailed. Appeal of the petitioner, however, was dismissed by the Tribunal vide impugned judgement dated 23.6.2000. 4. It is against the back drop of these facts that the petitioner has filed present writ petition assailing the order of confiscation and penalty and the judgement of Tribunal dismissing the appeal. 5. Shri S.R. Bajwa, learned Senior Counsel appearing for the petitioner argued that the cause of action for filing of the present writ petition arose to the petitioner only when the revision petition filed by the respondent-department was allowed in part by the Additional Sessions Judge No.2, Jodhpur vide his judgment dated 14.5.2003. It is thereupon that the present writ petition was filed by the petitioner on 19.8.2003. It is contended that even in the writ petition filed in 2003, petitioner could question legality and validity of the confiscation order dated 7.5.1996 because this order suffers from numerous illegalities. Learned counsel submits that according to Section 11B of the Customs Act, confiscation could be made only of such goods, which were notified by the Central Government on satisfaction that it is expedient in the public interest to take special measures for the purpose of checking illegal import, circulation or disposal of such goods. Silver at the relevant time was not notified as such. Silver at the relevant time was not notified as such. Under chapter IVA and IVB of the Act, silver was noticed under Section 123 of the Customs Act vide notification dated 8.6.1990, followed by a clarificatory notification dated 11.6.1990 from the Finance Secretary, Government of India, New Delhi saying that silver which did not bear foreign mark, was not required to be seized. In the present case, the silver that was seized did not at all bear any foreign markings. Learned counsel submitted that even otherwise, silver was seized while coming from Palanpur to Pali and since both places are situated 400 kms. inside Indian territory, therefore, the customs authorities had no jurisdiction to seize such silver. Learned counsel referred to Section 111 of the Customs Act and argued that none of the clauses from (a) to (p) thereof were attracted in the facts of the present case, therefore, the goods could not be taken to have been improperly imported and confiscation could not be justified. All these arguments were although noticed by the adjudicating authority in his order, but none of them were decided. 6. Shri S.R. Bajwa, learned Senior counsel also relied on Section 112 and argued that penalty could be imposed only after an attempt was made to export goods improperly and if the goods were not dutiable goods or otherwise did not fall in any of the clauses (a) to (l) of Section 113, penalty could not be imposed. Learned counsel in this connection also referred to sub-section (2) of Section 123 and argued that this section applies to gold and items manufactured therefrom, watches and any other class of goods which the Central Government may by notification in the official specify. What has been specified in the present case is silver with foreign mark, but according to judgement of criminal court, there was no foreign mark on the silver that was seized in the present case. Learned Senior counsel argued that order of confiscation passed by adjudicating authority was not a complete order because it was simultaneously required to give an option to the petitioner to pay fine in lieu of confiscation. Learned Senior counsel argued that order of confiscation passed by adjudicating authority was not a complete order because it was simultaneously required to give an option to the petitioner to pay fine in lieu of confiscation. In this connection, learned counsel referred to Section 125 of the Act and argued that since the order was incomplete and did not become final and was passed without compliance of principles of natural justice, its validity could at any point of time can be challenged by the petitioner, even directly before this Court. Referring to para 20 of the adjudication order, learned senior counsel argued that all these arguments were noticed by the adjudicating authority. The Tribunal also considered these very arguments. But neither of them gave any reasons for not accepting those arguments of the petitioner. Giving reasons in respect of its order by the administrative/quasi judicial authorities is one of the essential components of principles of natural justice. In this connection, learned counsel relied on a recent judgement of Supreme Court in Kranti Associates Pvt. Ltd. & Anr. v. Masood Ahmed Khan & Ors.-(2010) 9 SCC 496 and argued the orders of the adjudicating authorities as well as Tribunal are totally lacking in reasons. It is further argued that the order passed by the revision court in the criminal case to the extent it set aside the order for return of silver to the petitioner is contradictory in terms because in earlier part of the order, the learned Additional District Judge has upheld the finding recording by the learned Special Magistrate while discharging the petitioner on the basis of his satisfaction that the silver was not having any foreign mark so as to attack the provisions under the Customs Act, in later part, however, the said court has upheld the order of discharge. Such an order therefore cannot be relied by the respondents for not returning the silver to the petitioner. 7. Learned Senior counsel also argued that statement recorded under section 108 being inadmissible in evidence could not be relied by the department to confiscate the seized silver. He has alternatively argued that even confiscation order can now be reopened as per the provisions contained in Chapter XIV-A regarding settlement of cases. In this connection, learned senior counsel referred to provisions contained in Section 127B. It is therefore prayed that the writ petition be allowed in the terms prayed for. He has alternatively argued that even confiscation order can now be reopened as per the provisions contained in Chapter XIV-A regarding settlement of cases. In this connection, learned senior counsel referred to provisions contained in Section 127B. It is therefore prayed that the writ petition be allowed in the terms prayed for. 8. Per contra, Shri Ajay Shukla, learned counsel appearing for respondents opposed the writ petition and argued that at the relevant time, petitioner had the alternative remedy of getting a reference made to this Court under section 130A of the Act against the order of the Tribunal. He having not availed that remedy, this writ petition would not be maintainable before this Court. Learned counsel in support of his arguments relied on the judgment of Supreme Court in Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement & Anr.-(2010) 4 SCC page 772. Learned counsel submitted that petitioner did not even challenge the order of confiscation before the CEGAT by filing appeal under section 128A. He filed his appeal merely challenging the order of penalty and thus he has accepted the order of adjudicating authority as valid, which part of the order, has thus otherwise attained finality. Learned counsel denied that confiscated silver did not have any foreign mark. In this connection, he referred to the finding of the adjudicating authority especially in para 43 of the order. Learned counsel for respondent referred to the statement of Ayub Khan recorded under Section 108 of the Customs Act on 8.12.1994, from whose possession the silver was seized to argue that this witness admitted that 100 silver bricks were entrusted by the petitioner to one Naseer Bhai for converting them into `chaurasas' which were subsequently returned to the petitioner. When the raid was conducted on the premises of the petitioner, he transferred another lot of silver converted into `chaurasas' by his un-numbered jeep to his farm located at Kheral and then further transported them to elsewhere. Learned counsel submitted that the order of learned Additional District Judge whereby the revision petition filed by the respondent was partly allowed setting aside the direction contained in the order of Special Magistrate to return the silver to the petitioner, has also not been challenged by the petitioner before this Court. The said order has thus attained finality. The writ petition be therefore dismissed. 9. The said order has thus attained finality. The writ petition be therefore dismissed. 9. We have given our anxious consideration to rival submissions and perused the material on record. 10. Petitioner in the present case has directly challenged the order of confiscation dated 7.5.1996 while simultaneously challenging the order of the CEGAT dated 23.3.2000. Although the order dated 7.5.1996 was a composite order directing confiscation of the silver as also imposing penalty on 14 persons including the petitioner but the petitioner for the reasons best known to him merely challenged that part of this order before the CEGAT by which penalty of Rs. 50,000 was imposed upon him. This would mean that the petitioner accepted the order regarding confiscation as valid, whereas according to Section 129A clause (a), the order passed by the Commissioner of Customs as adjudicating authority is appealable before the Tribunal. Even when the Tribunal partly accepted the appeal filed by the petitioner against the order of penalty and reduced the amount of penalty from Rs. 50,000/- to Rs. 30,000/- by order dated 23.6.2000, petitioner had the remedy of getting a reference made to this Court under Section 130A. Petitioner did not avail that remedy. Now he cannot possibly be permitted to assail validity of the adjudication order regarding confiscation passed on 7.5.1996 and the judgement of CEGAT dated 23.6.2000 directly in the present writ petition, that was filed on 19.8.2003. There is an additional reason, why remedy against the confiscation may not be available to the petitioner seeking a direction to the respondents to return the 294 silver chaurasas weighing 252.177 kgs. to the petitioner. The basic order of confiscation was passed on 7.5.1996. This order to the extent of confiscation, was never subjected to challenge by the petitioner even before the CEGAT. Although, the learned Special Magistrate, Economic Offences, Jodhpur while discharging the petitioner and other accused persons directed that the seized silver may be returned to the petitioner after expiry of limitation for filing appeal, but that part of the order was somewhat diluted by the learned Special Magistrate in his subsequent order passed on 7.3.2002 by directing that the silver may be returned to the petitioner on his furnishing security to the extent of its value. However, both these directions were set aside by the learned Additional Sessions Judge in the revision petition filed by Customs department, which was partly accepted vide judgement dated 14.5.03. The order passed by the learned Additional District Judge partly accepting the revision petition filed by the petitioner has also attained finality and was not challenged any further by the petitioner, either before this Court or before the Supreme Court. 11. The Supreme Court in Raj Kumar Shivhare, supra while considering the scheme of the Foreign Exchange Management Act, 1999, which provides remedy of appeal against the final order under section 19 observed that where a statutory forum is created for redressal of grievances and that too in a fiscal statute, a writ petition cannot be entertained ignoring the statutory scheme. The Supreme Court in the aforesaid case has considered its earlier constitution bench decisions on this aspect in Thansingh Nathmal v. Superintendent of Taxes- AIR 1964 SC 1419 and in Titaghur Paper Mills Co. Ltd. v. State of Orissa- (1983) 2 SCC 433 and another constitution bench judgment in Mafatlal Industries ltd. v. Union of India- (1997) 5 SCC 536 and in para 29 to 32 of the judgment held as under: "29. By referring to the aforesaid schemes under different statutes, this Court wants to underline that the right of appeal, being always a creature of a statute, its nature, ambit and width has to be determined from the statute itself. When the language of the statute regarding the nature of the order from which right of appeal has been conferred is clear, no statutory interpretation is warranted either to widen or restrict the same. 30. The argument that writ jurisdiction of the High Court under Article 226 of the Constitution is a basic feature of the Constitution and cannot be ousted by parliamentary legislation is far too fundamental to be questioned especially after the judgment of the Constitution Bench of this Court in L. Chandra Kumar v. Union of India- (1997) 3 SCC 261 . However, that does not answer the question of maintainability of a writ petition which seeks to impugn an order declining dispensation of pre-deposit of penalty by the Appellate Tribunal. 31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. However, that does not answer the question of maintainability of a writ petition which seeks to impugn an order declining dispensation of pre-deposit of penalty by the Appellate Tribunal. 31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact, there could hardly be any reason since the High Court itself is the appellate forum." 12. We are not persuaded to countenance the indigenous arguments advanced by Mr.S.R. Bajwa, learned Senior Counsel appearing on behalf of petitioner that unless option was given to the petitioner to pay fine in lieu of compensation as required by Section 125, adjudication order did not become complete or final because accepting that argument, would tantamount to saying as if the order has not come into existence, which is not the case because the order was very much there and was in fact challenged by the petitioner himself before the CEGAT, albeit, on the aspect of penalty and not on the question of confiscation. Even if the arguments of the petitioner were to be accepted, this could at the maximum be an illegality attached to the order entitling the appellant authority to examine validity of the order if and when challenged before it. Petitioner deliberately did not challenge the confiscation order passed by the adjudicating authority or that part of the order by which the adjudicating authority directed confiscation of the seized silver and confined his challenge merely to the penalty. He therefore cannot be permitted to now directly adjudicate this question before this Court. 13. Petitioner deliberately did not challenge the confiscation order passed by the adjudicating authority or that part of the order by which the adjudicating authority directed confiscation of the seized silver and confined his challenge merely to the penalty. He therefore cannot be permitted to now directly adjudicate this question before this Court. 13. Contention that the orders passed by the adjudicating authority and the CEGAT are lacking in reasons and that the arguments advanced before them have not been properly rejected by giving reasons and order thus not being reasoned one, which being a necessary component of the principles of natural justice, could be directly assailed before this Court, cannot be accepted because writ petition cannot be directly entertained ignoring the statutory remedy of appeal, that was available to the petitioner. Even on the question of penalty, the petitioner did not avail the remedy of getting the reference made to this Court under Section 130A of the Act. Petitioner has also not challenged the order passed by learned Additional District Judge by which the directions issued by the learned Special Magistrate, Economic Offences to the respondents to return the seized/confiscated silver was set aside. Petitioner has thus by his own action/inaction, while not questioning correctness of the confiscation order as also the order passed by the learned Additional District Judge, accepted those orders as valid, which orders have even otherwise became final. In these facts, petitioner cannot be held to be entitled to the relief prayed for. 14. Even if we test the strength of petitioner's arguments alternatively on merits, we find that Supreme Court in Tukaram G. Gaokar v. R.N. Shukla & Ors.- AIR 1968 SC 1050 held that the power of levy of penalty and confiscation under Section 111 and 112 of the Customs Act is vested only in customs authorities and criminal court cannot make its adjudication. The customs officials are competent to confiscate the goods and levy penalty on the persons concerned, though the trial of those persons in criminal court for connected offence is pending. Argument that initiation of those proceedings would tantamount to contempt of court, was therefore rejected. 15. The customs officials are competent to confiscate the goods and levy penalty on the persons concerned, though the trial of those persons in criminal court for connected offence is pending. Argument that initiation of those proceedings would tantamount to contempt of court, was therefore rejected. 15. A Constitution Bench of the Supreme Court in Sewpujanrai Indrasanarai Ltd. v. Collector of Customs and Ors.- AIR 1958 SC 845 while considering the scope of Section 167(8) of the Sea Customs Act, 1878, which is the predecessor provision of Section 123, held that while criminal proceedings under section 23 of the Foreign Exchange Regulation Act is a proceeding against the offender and is applicable to the person, who contravenes any of the provisions of that Act and on conviction for such contravention, the Court may, if it thinks fit, in addition to any sentence which it may impose for such contravention, direct that the goods in respect of which the contravention has taken place be confiscated. In substance, it is a proceeding against a person for the purpose of penalising him for contravention of the provisions of the Foreign Exchange Regulation Act, and such a proceeding is available when the offender is known. However, section 167(8) of the Sea Customs Act provides that goods imported and exported to India contrary to the special provisions under the section, then penalty is liable to be imposed apart from confiscation of such goods. It was held that so far as the confiscation of goods is concerned, it is a proceeding in rem and the penalty is enforced against the goods whether the offender is known or not known. The order of confiscation under Section 182 of the Sea Customs Act operates directly upon the status of the property and under Section 184 transfers an absolute title to the Government. 16. In K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin- (1997) 3 SCC 721 , it was held by the Supreme Court that a person suspected by a Customs Officer of having committed an offence under the Customs Act is not an accused at that stage. He becomes an accused only when summons are issued by a competent court/Magistrate pursuant to a complaint lodged by the competent Customs Officer. He becomes an accused only when summons are issued by a competent court/Magistrate pursuant to a complaint lodged by the competent Customs Officer. Statement of such person recorded under Section 108 during enquiry or during confiscation proceedings, cannot therefore be considered to be that of an accused within the meaning of Section 24 of the Evidence Act. 17. In Shambhu Dayal Agarwala v. State of West Bengal & Anr.- (1990) 3 SCC 549 , it was held by Supreme Court in the context of Section 6A of the Essential Commodities Act, 1955 that the confiscation of essential commodities is not in lieu of punishment but can be in addition to the penal consequences. Breach of the order made under Section-3 attracts penal consequence i.e. imprisonment or fine and also renders the property seized liable to confiscation. The Act separately in Section 6A provides for seizer or confiscation of the property after following requirement of Section 6-B and so long as the prosecution remains pending, the Collector/Additional Collector could not direct release of the seized goods. 18. In our considered view also, the adjudicating proceedings under Section 111 are entirely different in their scope, where required standard of proof is also of lesser degree than the one in criminal trial for the alleged offence where for the offence shall have to be proved by the standard of proof beyond reasonable doubt. Even if the petitioner and other accused have been discharged by the criminal court, which order has been even upheld by the revisional court, the confiscation order can still be independently maintained because confiscation of the seized contraband is not in lieu of prosecution but is in addition thereto. 19. In view of the discussion made above, we do not find any merit in the writ petition. This writ petition is therefore dismissed with no order as to costs.Petition dismissed *******