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TMI Blog2013 (8) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... on the side of the prosecution, triable issues were involved – the assesse with mala-fide intention of evading duty had mis-declared the items – Held that:- Assesse had produced the fabricated certificate to show the country of origin as Malaysian origin instead of China with the intention to evade Anti Dumping Duty – Assesse knowingly had produced the overseas invoice which was fabricated. Petition for Discharge from Criminal proceedings - Held that:- The petition for dismissing the discharge petition was not entertained - The prosecution case was at a partly heard stage - Revenue had made out that the accused had evaded payment of duty – Decided against assesse. - Crl.R.C.No.1165 of 2010 & M.P.No.1 of 2010 - - - Dated:- 29-7-2013 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Special Public Prosecutor, dismissed the said discharge petition. 3. Aggrieved by the said dismissal order, the above revision has been filed by the accused. 4. The learned counsel for the revision petitioners argued that the Director of Revenue Intelligence, Zonal Unit, Bangalore conducted investigation and issued a show-cause notice dated 28.11.2006, in respect of the above said consignments and the same is pending adjudication at the hands of the Commissioner of Customs, Seaport-Import, Chennai. As such, a department appeal is pending and under the circumstances, the complainant has filed a complaint in E.O.C.C.No.280 of 2008, before the learned Magistrate, Egmore, which is a parallel proceeding on the same issue. Further, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been imported and invoice and other documents obtained, which has been filed before the customs authorities for assessment, examination and clearance of imported goods. Therefore, mis-declaration does not arise in this case. The highly competent counsel further argued that no efforts had been taken even to issue summons to the overseas supplier calling for their explanation. Further, no enquiry or investigation has been made with the liner or with the malaysian authorities regarding the correctness and legality of the documents seized. 5. Further, no enquiry has been made as to whether the container in which the material arrived or the ship in which the goods reached India had its origin in China. In the absence of vital lacuna, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orum which is against principle of natural justice. 7. The learned counsel for the revision petitioner further submitted that the entire facts of the complaint is on the basis of two statements recorded under Section 108 of Customs Act, 1962 by the Senior Intelligence Officer from the second accused. It is submitted that these statements have to be eschewed for the reason that they are voluntarily and tainted on account of it not been recorded in a manner known to law. The learned counsel supporting his case, has cited the following judgment:- RADHESHYAM KEJRIWAL Vs. STATE OF WEST BENGAL reported in 2011 (266) E.L.T.294 (S.C.) "Foreign exchange violations - Adjudication and criminal proceedings - Both can be launched simultaneously; d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of relevant records. Therefore, on the side of the prosecution, triable issues are involved. The accused had imported six consignments of measuring tapes covered under six bills dated 26.04.2005 and had cleared the same for home consumption. The accused declared that the goods originated from Malaysia but actually, the goods had originated from China. As such, the accused, with mala-fide intention of evading duty had mis-declared the items. 9. The learned counsel for the respondent further submitted that the accused had produced the fabricated certificate to show the country of origin as Malaysian origin instead of China with the intention to evade Anti Dumping Duty. The very same accused knowingly had produced the overseas invoice whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prima-facie case on the side of the prosecution. 10. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned order of the trial Court, this Court does not find any discrepancy in the conclusions arrived at for dismissing the discharge petition. This Court is of the further view that the prosecution case is at a partly heard stage and the case has been posted for defence side evidence and as such, the defence side has an opportunity to establish the case by way of adjudication. Further, in the said prosecution case, triable issues are involved. In this case, the prosecution had made out that the accused had evaded payment of duty to the tune of Rs.1,66 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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