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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 ..... ts 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 respect of the contravention of the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence 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 dispute that the accused have got themselves engaged in the manufacture of precision tools i.e., components of watches. The firm is a 100 per cent Export-Oriented Unit. On 23-2-1998, the officials of D.R.I., Mangalore had conducted a search in the premises of the 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (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) The ld. Commissioner erred in holding that the Appellants viz., Chiramith Precision (India) imported duty free raw materials and clandestinely diverted the same to Chirag Enterprises and Tavadec Industries Pvt. Ltd. (in the guise of high generation of waste) as against the purpose for which the same were imported, without technically verifying the same. On the contrary, Chiramith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me facts and in particular, it was contended that the accused had committed offence punishable under Section 135 of the Customs Act. The accused feeling aggrieved by the order of the Commissioner, have come up before this Court with the instant Criminal Petition. 10It is a. settled principle of law that the inherent powers of this Court are to be exercised with great care, caution and circumspection and in rarest of rare cases. 11.At this stage, it is necessary to mention that the bone of contentions of the petitioners is that in view of the findings of the Tribunal, the final fact finding authority under the act, the criminal prosecution is totally uncalled for. This aspect has been disputed by the other side and according to the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported 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 Act, deciding the question in favour of the assessee, prosecution proceedings against him on the same charge cannot be sustained. 17.It is also necessary to refer to another decision of Madras High Court, reported in 2002 (139) E.L.T. 498 rendered in the case of Swathi Medicals v. Union of India, wherein, it has been held that the tribunal having held that the petitioner makes necessary declaration for the classification list etc. and followed by procedures under Central Excise Act, without suppressing any material. The Department not challenged the order of the tribunal, prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 host of officials on the charges under Sections 109, 114 and 409 of Indian Penal Code, it would be the responsibility and duty of the Magistrate to find whether the concerned accused were legally responsible for the offences charged for, before issuing the process. Thus the complaint on the basis of which the process was issued was filed as vendetta to harass the persons needlessly, the complaint was quashed." 20.It is a settled principle of law that this court has been empowered to exercise the inherent powers, if the petitioner is able to make out any one of the grounds as enshri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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