9911796707
TMI Blog2018 (3) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... factory as scrap. When the foundation for case of the Department was that two autoconers were not destructed despite obtaining permission, it is quite astounding as to how the CESTAT observed that the destruction of two autoconers was not in dispute. Therefore, though the order of the CESTAT attained finality on civil side, still criminal proceedings against fraud and cheating can be independently established by the prosecution. Petition dismissed - decided against petitioner. - Criminal Petition No. 2265 of 2015 - - - Dated:- 2-3-2018 - U. Durga Prasad Rao, J. For the Petitioner : Pillix Law Firm For the Respondent : Sri K. Surender, Special Public Prosecutor for CBI ORDER This petition is filed under Section 482 Cr.P.C by the petitioner/A4 seeking to quash the proceedings against him in C.C.No.29 of 2006 on the file of Special Judge for CBI cases, Visakhapatnam. 2) The Inspector of Police, CBI, SPE, Visakhapatnam filed charge sheet against A1 to A5 for the offences under Sections 120B, 420, 468, 471 IPC and under Section 13(2) r/w 13(1)(d)(ii) of Prevention of Corruption Act, 1988. a) A1 to A3 are the officials of Customs Department. A4Anil Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Public Prosecutor for CBI. 4) Learned counsel for petitioner would challenge the proceedings in C.C.No.29 of 2006 on the main plank of argument that against the order passed by the Commissioner of Customs and Central Excise, Guntur petitioners Company preferred an appealC/270-272/2007 before the Customs Excise and Service Tax Appellate Tribunal (CESTAT), Bangalore and final order was passed in order Nos. 445-447/2012 allowing the appeal in favour of petitioner on 13.06.2012 holding that machinery was dismantled under the supervision of the Central Excise Officers and cleared from the factory as scrap. As such, it should be considered as Domestic Tariff Area (DTA) clearance by the Export Oriented Unit (EOU) attracting Central Excise duty. It was not a clearance of the capital goods from the factory. Therefore, payment of Central Excise duty by the assessee at the time of clearance of the scrap to M/s.SJSML cannot be faulted. Added to it, there is no valid case to hold that there was suppression or wilful misstatement of facts, let alone fraud, with intent to evade payment of duty has been made out against the petitioner. Learned counsel argued that the said order of CESTAT remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fulcrum of prosecution case is that A4 and A5 having obtained permission from the Deputy Commissioner, Central Excise, Guntur for destruction of two autoconers, indeed, did not do so, but they, with the conspiracy of A1 to A3, fabricated record of destruction in their premises and sold the two autoconers to M/s.SJSML for ₹ 50 lakhs and this fact was exhumed when the two autoconers were found in working condition at M/s.SJSML by Superintendent, Preventive, Central Excise, Guntur and thus A4 and A5 evaded tax hence, the charges against all the accused. 8) The Honourable Apex Court in State of Haryana and others vs. Ch. Bhajan Lal and others AIR 1992 SC 604 have laid down the following guidelines relating to exercise of inherent power under Section 482 Cr.P.C. to quash the proceedings to prevent abuse of process of Court. They are: 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding the order passed by CESTAT, I have gone through the said order dated 13.06.2012 in appeal Nos.C/270-272/2007. Those appeals are filed by A4 against the order passed by Commissioner of Customs and Central Excise, Guntur in his proceedings No.CEX-15/2006 (Commissioner) dated 14.12.2006. a) A perusal of said order would show that in Para-29 he gave a clear finding thus: Para-29: xx xx xx.. From the above facts, it is evident that the entire operation of applying for destruction of autoconers and transferring the same to M/s.Sri Jayalakshimi Spinning Mills Limited M/s.Sri Jayalakshimi Spinning Mills Limited are able to make use of them with the technical adjustments of their own staff is a planned one. xx xx xx. Though the permission for destruction accorded to them vide Deputy Commissioner, Central Excise, Gunturs letter C.No.2/2002/DC/Steno dated 24.07.2002, if the destruction was completed, how the obsolete machinery still available to them for clearance on 09.10.2003 i.e. for one year after permission is accorded. Thus the machinery was not destructed and the same were cleared on 09.10.2003. b) With the above and other findings, the learned Commissioner passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ountenanced for the following reasons. a) Firstly, in this case the department has initiated simultaneous civil and criminal proceedingscivil proceedings for recovery of tax evaded with interest and penalty before the Commissioner and criminal proceedings for punishing the accused for their conspiratorial acts of cheating and falsification of records etc. b) It is a well known principle that when the same cause of action give rise to civil and criminal proceedings, both can be initiated simultaneously. The emancipation of the accused in the corresponding civil proceedings will have no binding effect on the criminal proceedings and vice-versa because the civil and criminal proceedings operate on different spheres. The civil proceedings proceed on the principle of preponderance of probabilities whereas the criminal proceedings take the course of proof to the hilt. 13) In Kishan Singh (D) through LRs. vs. Gurpal Singh and others AIR 2010 SC 3624, the question that came up for consideration before the Apex Court was whether criminal proceedings can be quashed by the High Court relying upon the finding of civil court on an issue involved in criminal proceedings in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant if conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. Para-31: Further, the judgment, order or decree passed in a previous civil proceedings, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, Court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for illustration, in a case of alleged trespass by 'A' on 'B's property, 'B' filed a suit for declaration of its title and to recover possession form 'A' and suit is decreed. Thereafter, in a criminal prosecution by 'B' against 'A' for trespass, judgment passed between the parties in civil proceedings would be relevant and Court may hold that it conclusively establishes the title as well as possession of 'B' over the property. In such case, 'A' may be convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear. Hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the civil proceedings will be admissible in evidence only for a limited purpose. It is not a case where the parties have entered into a compromise in relation to the criminal charges. In fact, the offence alleged against the accused being an offence against the society and the allegations contained in the first information report having been investigated by the Central Bureau of Investigation, the bank could not have entered into any settlement at all. The CBI has not filed any application for withdrawal of the case. Not only a charge sheet has been filed, charges have also been framed. At the stage of framing charge, the appellant filed an application for discharge. One of the main accused is the husband of the appellant. The complicity of the accused persons was, thus, required to be taken into consideration for the purpose of determining the application for discharge upon taking a realistic view of the matter. While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sprudence would give a clear understanding that civil and criminal proceedings can be initiated simultaneously and judgment in one proceeding will not have impact on the other. In the case on hand also, merely because CESTAT held that A4 and A5 need not pay the tax as claimed before the Commissioner, Customs and Central Excise, Guntur and approved by him, the criminal proceedings cannot be quashed. The judgment in civil case will not be relevant under Sections 40, 41, 42 or 43 of the Evidence Act. At best, the said judgment will be relevant to consider the quantum of punishment to be imposed to the accused in case the criminal proceedings culminate in conviction. 18) Secondly, as extracted supra, in para-6 of its order, the CESTAT observed as if it was not in dispute that machinery was dismantled under the supervision of the Central Excise Range Officers and cleared from the factory as scrap. When the foundation for case of the Department was that two autoconers were not destructed despite obtaining permission, it is quite astounding as to how the CESTAT observed that the destruction of two autoconers was not in dispute. Therefore, though the order of the CESTAT attained finalit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
