Delhi High Court
Biharij Mfg. Co. P. Ltd. vs Commissioner Of Central Excise on 14 February, 2007
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT S. Ravindra Bhat, J.
Page 0748
1. By this petition under Section 482 Cr.P.C. a quashing order in respect of criminal proceedings initiated on a complaint by the respondent, Commissioner of Central Excise, Delhi is sought for.
2. The allegations against the petitioners were briefly that they indulged in clandestine removal of manufactured goods and that the value of the clearance, taken together with that of other entities, viz M/s. Cosmos Industries, M/s. Prabhat Sanitryware and M/s. Supreme Plast India exceeded Rs. 1 crore i.e. the limit indicated by an exemption notification issued by the Department in that regard. The crux of the charge was that the clearances had to be taken together, and so valuded, the petitioners were liable to pay excise duty.
3. The adjudication order, upon issuance of the show cause notice resulted in findings delivered against the petitioners by the Commissioner of Central Excise. Aggrieved, they preferred appeals to the Customs, Excise and Service Tax Appellate Tribunal. By its order dated 1.2.2005, the Tribunal allowed the appeal and held inter alia that no materials were produced nor was there anything brought on record to show that the goods were actually cleared by the petitioners.
4. On the basis of findings and order of the Tribunal (which it is stated, has become final), the petitioners' claim that it is not open for the respondent to proceed with a criminal complaint any longer.
5. Learned Counsel for the petitioners has placed reliance on the judgments of the Supreme Court reported as G.L. Didwania v. Income Tax Officer , Commissioner of Income Tax, Mumbai v. Bhupen Champaklal Dalai and Anr. (2001) 3 SCC 469, Bhavensh Kumar @ Pappu v. Union of India and Ors. 1992(3) Crimes 777 and R.K. Goenka v. Collector of Customs and Anr. 2002 IV AD(Cr.) DHC 229 in support of his submission that if an adjudication order results findings favorable to an assessed on the self allegations, the Department cannot pursue with criminal proceedings.
6. Ms. Pooja Bhaskar, learned Counsel submitted that even though the order of the Tribunal favored the petitioners, nevertheless it is open to the respondent to challenge the matter in appeal. She has relied upon the judgment of the Supreme Court in Standard Chartered Bank and Ors. v. DRI 2006 (1) JCC 488 and other decisions affirmed by that judgment for the proposition that wherever offences are separately and independently prescribed in special legislation, (particularly, those dealing with economic offences, or fiscal matters), it is open to the authorities to proceed independently, irrespective of adjudication orders.
7. The finding of the Tribunal to the extent it is relevant is extracted below: 9. As Revenue has not succeeded in proving that the fully manufactured goods were removed from the premises of M/s. Hindustan Silicate and Page 0749 M/s. Bihariji, no question of demanding central excise duty from these two Appellants arise and more so on the basis of documents seized from the premises of Cosmos Industries. The learned Advocate has also referred to the statement dated 29.5.2003 of Sh. Vinod Kumar Jain who has deposed that the details were prepared simply to impress L.N. Agarwal and that some of the sale figures pertained to the goods purchased from open market. Further, there is no material brought on record to corroborate the Revenue's case that the impugned goods were manufactured by M/s. Bihariji and Hindustan Silicate and sold by Cosmos Industries through Sh. Vinod Kumar Jain. It has been held by Tribunal in many cases that the charge of clandestine removal has to be proved by Revenue by bringing positive evidence on record - Rajasthan Petro Synthetics v. C.C.E., Jaipur 2003 (160) E.L.T. 297 (T). The Apex Court has also held in Oudh Sugar Mills Ltd. v. Union of India 1978 (2) E.L.T. (J 72) that no order can be based on assumptions and presumptions and "the findings based on such presumptions without any tangible evidence will be vitiated by an error of law." Regarding entries in Order Books recovered from the premises of Cosmos Industries, the learned Advocate has contended that these entries were enquiry from customers in response to advertisement which has been countered by the learned S.D.R. by contending that the entries were so much in details which cannot be given on telephone by the prospective buyers. But there is nothing on record to show that the goods were actually cleared as no statement of any such customer has been brought on record. In view of this, the Revenue has not proved its charge against M/s. Bihariji Manufacturing Pvt. Ltd. and M/s. Hindustan Silicate & Chemicals and consequently neither any duty is demandable from them nor the goods seized from their premises are liable for confiscation. As a result of this the goods seized from other premises are also not liable to confiscation nor penalty is imposable on any of the Appellants. Accordingly, all the appeals are allowed with consequential relief, if any.
8. This Court in the judgment reported as Sunil Gulati v. R.K. Vohra 2007(1) JCC 220 which was relied upon by the learned Counsel for the petitioner during the hearing elaborately considered the various nuances of identical problems where adjudication proceedings culminated in orders favoring the accused/assessed and where in exercise of independent powers prosecution or complaints were lodged. The Court after noticing various judgments including Supreme Court rulings and the judgment in Standard Chartered Bank's case (supra) was of the opinion that there seemed to be a facial conflict but on a deeper analyses, it was apparent that it was one thing to say that two proceedings can be maintained as a matter of law, but entirely another to say that after suffering an adjudication order on the same facts, the Department or the prosecuting agencies ought not to be allowed to proceed and prosecute the assessed having failed to establish the basic facts. The issue is not, therefore, as much as existence of power to prosecute an offender, as the finding by a competent Court or Tribunal about foundational facts which would justify prosecution. This Court, after noticing the seemingly disparate threads of reasoning, reconciled the question, in the following terms:
Page 0750 In fact, various cases of the Supreme Court, not whereof is taken above, deal with different situations. The principles which can be culled out from the aforesaid judgments, when all these judgments are read out harmoniously, would be the following:
1. On the same violation alleged against a person, if adjudication proceedings as well as criminal proceedings are permissible, both can be initiated simultaneously. for initiating criminal proceedings on does not have to wait for the outcome of the adjudication proceedings as the two proceedings are independent in nature.
2. The findings in the departmental proceedings would not amount to resjudicata and initiation of criminal proceedings in these circumstances can be treated as double jeopardy as they are not in the nature of "prosecution".
3. In case adjudication proceedings are decided against a person who is facing prosecution as well and the Tribunal has also upheld the findings of the adjudicators/assessing authority, that would have no bearing on the criminal proceedings and the criminal proceedings are to be determined on its own merits in accordance with law, uninhibited by the findings of the Tribunal. It is because of the reason that in so far as criminal action is concerned, it has to be proved as per the strict standards fixed for criminal cases before the criminal court by producing necessary evidence.
4. In case of converse situation namely where the accused persons are exonerated by the competent authorities/Tribunal in adjudication proceedings, one will have to see that reasons for such exoneration to determine whether these criminal proceedings could still continue. If the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. If, on the other hand, the exoneration in the adjudication proceedings is on merits and it is found that allegations are not substantiated at all and the concerned person(s) is/are innocent, and the criminal prosecution is also on the same set of facts and circumstances, the criminal prosecution cannot be allowed to continue. the reason is obvious criminal complaint is filed by the departmental authorities alleging violation/contravention of the provisions of the Act on the part of the accused persons. However, if the departmental authorities themselves, in adjudication proceedings, record a categorical and unambiguous finding that there is no such contravention of the provisions of the Act, it would be unjust for such departmental authorities to continue with the criminal complaint and say that there is sufficient evidence to foist the accused persons with criminal liability when it is stated in the departmental proceedings that ex-facie there is no such violation. The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as criminal complaint are identical and the exoneration of the concerned person in the departmental Page 0751 proceedings is on merits holding that there is no contravention of the provisions of any Act.
9. The above narrative would show that show cause notice as well as the complaint are premised on identical facts, namely, clandestine and illegal removal without disclosure to the Central Excise Authorities by the petitioners. Though the first round went in favor of the Department in as much as adjudication by the Commissioner fastened liability upon the petitioners, those findings were reversed by the Tribunal, which categorically and unambiguously recorded that there were no materials recovered to prove the charge of clandestine removal, or that evasion of duty stood established. In these circumstances, I am of the opinion that on application of the rule enunciated in Sunil Gulati's case, (particularly, the latter portion of proposition (4) quoted above, i.e. exoneration of the assessed being on merits, and not on a technicality) further proceedings in the criminal complaint would not sub-serve ends of justice.
10. For the above reasons, the petitioners are entitled to succeed. Complaint No. 44/1/04 and further proceedings initiated against them are hereby quashed.
11. The petition is allowed in the above terms. No costs.