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TMI Blog2004 (3) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... ned. 2.The Court has heard the arguments of Sri Mohammad Ali, the learned Counsel appearing on behalf of the petitioners and Smt. Shireen Zafrullah, the Addl. Central Government Standing Counsel. 3.The learned Counsel for the petitioners, strenuously contended that the material on record clearly shows that the entire proceedings impugned before this Court are illegal and improper. The complainant was not at all justified in filing the complaint before the learned Magistrate. He also contends that the fact finding authority i.e., the Tribunal constituted under the provisions of the Customs Act, after a detailed enquiry, had set aside the order of the Commissioner of Customs, wherein the Commissioner had imposed duty and also penalty in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners, the same would not ensue to the benefit of the petitioners. The learned Counsel also contends that the order of confiscation in the Departmental Enquiry does not in any way affect the complainant to file a complaint and prosecute the petitioners for the offence in question. The learned Counsel also relies upon decisions of the Apex Court, reported in 1999 (113) E.L.T. 375 (S.C.) in support of her contentions. Placing reliance on the ratio laid down in the said decisions, the learned Counsel prays for dismissal of the petition. 7.The Court has carefully gone through the material on record and has given its anxious thoughts over the rival contentions raised at the Bar. 8.From the material on record, it is seen that there is no disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ld. Commissioner erred in holding that the Appellants viz., Chiramith Precision (India) diverted raw materials imported by them to Tavadec Industries Pvt. Ltd., for being used in the products for being manufactured and sold to customers in the domestic market without adducing any proper evidence to support the same. (iii) The ld. Commissioner has erred in holding that the Appellants viz., Chiramith Precision (India) illegally exported spares to Mr. Didiar of Switzerland for allegedly setting payment due to him, without adducing any evidence for the same. No case of penalty on any appellant under Section 114 of the Customs Act, 1962 has been established. (iv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same and contradictory such findings are required to be set aside on these grounds itself. (ix) The entire proceedings from the issue of show cause notice that the adjudication concluded by non-compliance of binding Circular of Board are void and are required to be set aside for that reason alone. 3. In view of our findings, the order is set aside and appeals allowed with consequential relief." 9.When things existed so, the respondent had filed a private complaint before the trial court, alleging the same facts and in particular, it was contended that the accused had committed offence punishable under Section 135 of the Customs Act. The accused feelin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry conclusion, so long as the decision of the tribunal is in force. At this stage itself, I may hasten to add that the order of the tribunal, which had been relied upon by the petitioners remains unchallenged. 15.It is also necessary to refer to another decision of this Court, reported in 1999 (113) E.L.T. Page 37, wherein this Court had held that the tribunal as the last fact finding authority, having held gold articles seized to be finished gold ornaments and not primary gold, prosecution not to be continued. 16.It is also necessary to refer to another decision of the Apex Court, reported in 1999 (108) E.L.T. 16 (S.C.) rendered in the case of G.L. Didwania v. Income-tax Officer. The tribunal, the final fact finding authority under the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1815, wherein it has been held that the : "Judicial process should not be an instrument of oppression or needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly. Therefore, in case of default in repayment of bank loan, when the debt became time-barred and the bank has adjusted the debt from the FDRs in its possession which were deposited by the guarantor by way of security, after the maturity, and a complaint was laid by the guarantor impleading the Chairman, Managing Director of the bank and a ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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