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TMI Blog2018 (10) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... ), Customs House, Chennai, detained the export consignment of 125 Metric Tonnes of cargo declared as 'Industrial Salt' on 24.07.2009 lying at M/s. A.S.Shipping Container Freight Station, Numbal Village, Maduravoyal, Chennai 600 077, brought for export by M/s.Zandra Trading Company, Pondicherry. The said consignment was seized under a mahazar on 04.08.2009. At the time of detention of the above mentioned consignment, it was ascertained that another consignment of 50 MTS of cargo, declared as 'Industrial Salt' covered under shipping bill No.3429962 dated 14.07.2009 filed by the same exporter, M/s.Zandra Trading Company, Puducherry was lying at M/s.Viking container Warehousing Container Freight Station, No.5, GNT Road, Moolakadai, Chennai - 600 110. It was found that the petitioner herein is the Proprietor of M/s.Zandra Trading Company, Puducherry and he gave authorization to one R.Gopinath (A-3) to sign invoices on all shipping related documents at Bangalore on behalf of M/s.Zandra Trading Company. 4. The premises of M/s. Sri Lakshmi Packagings, Tirupur was searched on 03.09.2009 by the Tiruppur Customs Officers and a restraint order was issued on the 200 bags of sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon the following decisions: 1) G.L. Didwania and another Vs. Income Tax Officer and another, 1995, supp.(2) SCC 724 (2) K.C.Builders and another Vs. Assistant Commissioner of Income Tax (2004) 2 SCC 731. 7. The learned Special Public Prosecutor, on the contrary, has contended that it is true that the order which was passed by the adjudicating authority dated 29.03.2011 has been set aside by the CESTAT by the order dated 02.05.2012, but after setting aside the order of the adjudicating authority CESTAT has remanded the matter for fresh disposal. He further submitted that after remand, the adjudicating authority by the order dated 03.04.2014, has confirmed the earlier order and ordered for confiscation of the 375 MTS of Muriate of Potash and also imposed a penalty of Rs. 20,00,000/- u/s. 114 (i) and Rs. 2,00,000/- u/s.114 (AA) of the Customs Act, 1962. He further submitted that as against the said order, the petitioner herein has filed an appeal before the CESTAT and at the time of admitting the said appeal, Appellate Tribunal has passed an order on 10.03.2015 directing the petitioner herein to predeposit a sum of Rs. 10,00,000/-. He further submitted that as against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment order holding that there was no material to hold that 'Y' Company belonged to the assessee. The assessee thereupon filed a petition before the High Court u/s.482 of Cr.P.C., to quash the criminal proceedings and the same was dismissed. On appeal, the Hon'ble Supreme Court has held that the whole question was whether the appellant made a false statement regarding the income which according to the assessing authority escaped assessment and so far as the said issue was concerned, the findings of the Appellate Tribunal was conclusive and hence the prosecution cannot be sustained. Accordingly, the Hon'ble Supreme Court quashed the criminal proceedings and allowed the appeal filed by the assessee. 10. Following the aforesaid decision in K.C.Builders and another Vs. Assistant Commissioner of Income Tax (supra), the Hon'ble Supreme Court has held that the findings of the Appellate Tribunal was conclusive and the prosecution cannot be sustained since the penalty having been cancelled by the complainant following the Appellate Tribunal's order, no offence survives under the Income Tax Act and thus quashing of prosecution is automatic. 11. In the case on hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; (v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi)The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding: If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue the underlying principle being the higher standard of proof in crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision petition. On a further revision filed by the first respondent, the High Court has allowed the said revision and set aside the order of the Magistrate and directed him to consider the facts on merits in the trial. Feeling aggrieved, the appellants have filed an appeal before the Hon'ble Supreme Court by special leave. It was argued before the Hon'ble Supreme Court that in view of bar u/s.397, (3) Cr.P.C, the High court should not have entertained second revision, but the Hon'ble Supreme Court has held that though further revision before the High Court under Sub Section (1) of Section 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available u/s.482 Cr.P.C., and that the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. But in this case, admittedly no revision was filed against the order passed by the trial court in the discharge petition. So, the aforesaid decision will not be applicable to the facts of this case. 17. In Pepsi Foods Ltd., and another Vs. Special Judicial Magistrate and others (supra), after receipt of the summons, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute also like the Code of Civil Procedure (Code of Civil Procedure) Section 151 whereof deals with such power. Section 151 of Code of Civil Procedure reads: Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court. 25. This Court in the case of Padam Sen and Anr. v. State of Uttar Pradesh AIR 1961 SC 218 regarding inherent power of the Court under Section 151 Code of Civil Procedure observed: The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore, it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict what has been expressly provided in the Code or against the intentions of the Legislation. It is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code. 26. In a Constitution Bench decision r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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