9911796707
TMI Blog1996 (2) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... e and payable and ending with the last date of full payment. The observations in the nature of qualifications or reservations contained in the Order [Minutes of the Order] dated March 12, 1990, insofar as they relate to inclusion of value of C.F.Cs. in the value of refrigerators shall stand deleted. In other words, Godrej shall not dispute the inclusion of the value of C.F.Cs. in the value of refrigerators for the period covered by the demand notices impugned in Writ Petition No. 1110/83 and upto March 12, 1990, the date of "Minutes of the Order" aforesaid. - 4080, 4092-94, 4090-91 of 1996 - - - Dated:- 28-2-1996 - B.P. Jeevan Reddy and K.S. Paripoornan, JJ. [Judgment per : B.P. Jeevan Reddy, J.]. - These six petitions are filed seeking leave to appeal against a common judgment of the Bombay High Court dated November 29, 1991 directing the Registrar of the High Court to file a complaint against M/s. Godrej and Boyce Manufacturing Company Private Limited and some of its officers and dealers under Section 192 of the Indian Penal Code. This order was made under Section 340 of the Criminal Procedure Code, on the Court being satisfied prima facie that the said persons have com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Single Judge, Godrej wanted to rely upon certain letters said to have been addressed to it by its dealers to support its claim for exclusion of the value of C.F.Cs. The counsel for the Revenue opposed the admission of the said letters at that stage. In view of the said objection, the learned Single Judge declined to admit or rely upon the said letters. The writ petition was, however, allowed on other grounds. The letters which were actually handed over to the learned Single Judge in the Court; it is stated, remained in the record of the Court. 4.The Revenue filed a Letters Patent Appeal [No. 429 of 1986] against the decision of the learned Single Judge which was dismissed by the Division Bench in June, 1986. The Division Bench too did not refer to or rely upon the said letters. A Special Leave Petition was preferred by the Revenue in this Court against the judgment of the Division Bench in the year 1987. Meanwhile, certain developments took place, which are of immense relevance to the controversy herein. ln June, 1987, the premises of Godrej all over the country were searched and several documents seized. One of the documents seized was a letter dated June 1, 1983, writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of the question afresh involved herein in the light of these letters. The High Court will consider the question of admissibility, relevance the value of these letters and then come to a conclusion about the question of assessable value of the refrigerators and the consequence of that determination. The appeal is disposed of accordingly without any order as to costs." 5.The matter was accordingly posted before a Division Bench of the High Court which thought it appropriate that the matter be heard by the very same learned Single Judge who had disposed of the writ petition earlier. Accordingly, it was posted before the learned Single Judge. By this time, however, Godrej had become thoroughly demoralised. Caught in the act of fabrication of evidence, it chose to abandon its case for exclusion of the value of C.F.Cs. It gavc up the fight. It approached the Revenue authorities including the Central Board of Excise and Customs for a settlement. It said, it was prepared to accept the Revenue's case and pay up all the duty due on that basis. It also offered to refund the amounts which were refunded to it on the basis of the orders of the Court. It is stated by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above order was not an agreed order but an order of the Court though it was signed by counsel for both sides for the purpose of identification. 7.The Order dated March 12, 1990, it is relevant to note, does not contain any reference to Revenue's allegation of fabrication of evidence by Godrej nor to its request not to permit withdrawal - much less to the request of the Revenue, which is supposed to have been made before the learned Single Judge - to prosecute Godrej, its officers and its dealers in a criminal court. The order merely provides for payment of duties due from Godrej subject to certain observations. 8.Fifteen months later, i.e., on June 25, 1991, the Revenue took out a notice of motion before a Division Bench of the Bombay High Court requesting that appropriate criminal proceedings be initiated against Godrej, its officers and dealers for the aforesaid act of fabrication of evidence and its attempt to defraud the Court on that basis. 9.We may pause here for a moment and mention as to why the said notice of motion was taken out before a Division Bench and was entertained by it and not before the learned Single Judge. It appears that prior to October, 1990 all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Judge of the Bombay High Court who had heard and disposed of the writ petition could have made that direction but not the Division Bench. It is also argued that in the facts and circumstances of the case, it cannot be said that it is expedient in the interests of justice to direct the prosecution of the said persons. A prosecution should be ordered, it is argued, not merely because there is evidence indicating prima facie guilt; it must also be found expedient to direct the prosecution. It is also submitted that the question of expediency should have been decided only with notice to and after hearing the affected parties. Such an order, it is pointed out, is an appealable one. Lastly, it is suggested that on the facts of the case, Section 192 is not attracted because, at worst, it was a case of fabricating evidence to support a genuine claim - rather an involved argument, we must say, if not a convoluted argument, and in either case, unacceptable. 12.The learned Additional Solicitor General, Sri Jayaram, appearing for the Revenue, however, supported the reasoning and conclusion of the Division Bench. He disputed the correctness of the several contentions urged by the counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utes of the Order" says that the affidavit of Godrej dated February 28, 1990 and the sur-rejoinder [dated March 9, 1990] are taken on the file of the Court and are made part of the record. In the affidavit dated January 8, 1990, Revenue had set out its case regarding fabrication by Godrej and asked for dismissal of the writ petition on that ground alone. Neither this affidavit nor the sur-rejoinder, however, contain any request or prayer to direct the prosecution of Godrej and its officers and dealers. Two inferences follow (sic) from the above. The Revenue chose not to persist in its submission to dismiss the writ petition on the ground of the aforesaid fabrication and, at any rate, did not also ask for a direction to prosecute Godrej and its officers and dealers for the said act or it did put forward the said submissions but they were rejected. If the first inference is correct, then it is evident that not having asked for the prosecution at the appropriate stage, it cannot be allowed to ask for such prosecution after a gap of fifteen months. Its silence can be construed as abandonment of its pleas for dismissal of writ petition and/or for prosecution. If, on the other hand, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
