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TMI Blog1998 (1) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... se & Customs, Bhubaneswar issued three identical show cause notices in the name of the petitioners being No. C-V(40) 15/ADJN-11A/26/95/255 44A, dated 29th June, 1995. The allegation is this that the petitioners did not maintain daily production register and tyres manufactured much in excess of the recorded version as contained in the statutory register, namely RG 1. The allegation is that by means of suppression of production and clandestine removal of tyres the petitioner company has evaded Central Excise Duty to the tune of more than 10 crores. The further allegation is that the suppressed production for the period 1992 to 1995 were to the extent of 52787, 23664 and 15212 tyres respectively. The further allegation is that the 55 tyres which were seized from the premises of the company at Balasore were removed clandestinely without payment of Excise Duty. It is also alleged that 36 Metric Tonnes of Carbon Black were found to be stored in another unapproved godown at Sambalpur. It is also alleged that the Company misused the Modvat credit facility on the same 36 Metric Tonnes of Carbon Black to the Tune of more than one and half lacs, but no intimation was given to the competent au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over a number of days and the ld. Advocates representing the parties have placed on record exhaustive argument, as also written argument besides putting reliance on a number of decisions of different Courts including the Apex Court. 7.A preliminary objection was taken by the respondents in course of hearing of the revisional application touching on the maintainability of the present petition on the ground of lack of territorial jurisdiction over the matter. It is contended by the ld. Advocate appearing for the petitioners that in course of the order passed by this Court on 16th April, 1996 this Court came to a conclusion that this Court has territorial jurisdiction over the matter and as such the same point could not be canvassed by the opposite parties in course of a hearing of the main revisional application. However in order to meet the said point of maintainability the present petitioners have relied on identical arguments advanced earlier on the point of territorial jurisdiction. it is submitted that the Deputy Superintendent of Police, C.B.I. who lodged the F.I.R. is subordinate to and under the direct control of the Joint Director (Eastern India), C.B.I. whose office is sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e C.B.I. is not maintainable. it is also argued that in the event of both the proceedings continuing side by side there is the possibility of conflicting decisions as also the possibility of imposing punishment in both the proceedings which will amount to double jeopardy and a counter to Article 20(2) of the Constitution. It is also argued that where there is a special law as also the general law, the proceeding instituted on a general law which in this case is the Indian Penal Code and which was started at a latter point of time is not maintainable in view of a proceeding under the special law having been started earlier, since Central Excises & Salt Act is a later statute which was enacted to prevent evasion of Central Excise Duty Proceedings started under this Act should be given precedents. It is also argued that when in the matter of evasion of Central Excise Duty, the Central Act should be treated to be as a Substitution for the Indian Penal Code in respect of offences for evasion of Central Excise Duty. Reliance has also been placed on Section 26 of the General Clauses Act and it is argued that an Act or omission constituted an offence under two or more enactments then the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution. Regarding the argument that the point regarding maintainability was not challenged when the matter was heard at length in the interlocutory stage, it is submitted on the basis of a decision reported in A.I.R. 1973 S.C. 2391, A.I.R. 1954 S.C. 340, A.I.R. 1975 S.C. 2065 that the Point of lack of jurisdiction can be taken by the party at any stage of enquiry or trial. Such a plea can also be taken in the execution proceeding as well. Reference has been made to a decision reported in A.I.R. 1985 S.C. 1289, 1994 (4) S.C.C. 711 that this Court should not go beyond the territorial jurisdiction in entertaining application. Reference has also been made in course of the written argument that originally the opposite parties wanted a decision from this Court only on the point of maintainability alone so that in the event of adverse order they could move the Apex Court but subsequently as directed by this Court they also submitted on merit. 11.On merit it was argued for the opposite party after narrating the F.I.R. that on the face of it the F.I.R. reveals that there is a conspiracy between the officers of the petitioner company and the officers of Central Excise Department in order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner started to argue, it was submitted on behalf of the petitioners that this Court has taken a decision on the point of territorial jurisdiction by order dated 16th day of April, 1996 while extending the interim stay and as such this Court is precluded from hearing the point again. It may be mentioned that this Court at no point of time took any final decision on the point of territorial jurisdiction. To quote the relevant provision from the said Order "at this stage it will have to be seen prima facie whether this Court has got jurisdiction and final decision can be taken only at the time of hearing of the application under Section 482 Criminal Procedure Code on merit." Therefore, the question of territorial jurisdiction as raised on behalf of the opposite parties at the time of the petitioner's prayer for extension of interim order that question was decided prima facie with a view to see whether the interim order passed earlier could be extended and while doing so, it has specifically been observed that the final decision on the jurisdiction point can be taken only at the time of hearing of the application under Section 482 Criminal Procedure Code on merit when a thoroug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond the jurisdiction of this Court and cannot be called for. Therefore, I came to the conclusion that in view of the facts and circumstances and since the inherent jurisdiction of this Court has been invoked such jurisdiction shall not be exercised by this Court since it appears to me to be a Border Line Case and as such it is fit and proper that inherent jurisdiction of the Orissa High Court ought to have been invoked in this case. 14.Regarding merit, it is true that on the point of fact a proceeding under the Central Excises and Salt Act has been started earlier in point of time in comparison with the F.I.R. It is also true that the said proceeding is still pending but in view of the allegation as contained in the F.I.R. a proceeding under the said Act cannot be a substitute for the F.I.R. giving rise to the Criminal proceeding. Apart from the question of evasion of excise duty which can obviously be realised by resorting to a proceeding under the said Act which is of a civil nature there is also the allegation of cheating and conspiracy and involvement of a public servant posted at Balasore. Having regard to the seriousness of the allegation the Criminal Proceeding cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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