Karnataka High Court
Tantia Industries Private Limited vs The Additional Commissioner on 20 November, 2018
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
1
Crl.P. No.1691/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
CRIMINAL PETITION No.1691 OF 2018
BETWEEN:
1. TANTIA INDUSTRIES PRIVATE LIMITED
NO.253, BOMMASANDRA
INDUSTRIAL AREA
BENGALURU-560 099
REP BY ITS DIRECTOR
MR. LALIT TANTIA
2. MR. LALIT TANTIA
S/O MR. J P TANTIA
NO.253, BOMMASANDRA
INDUSTRIAL AREA
BENGALURU-560 099 ... PETITIONERS
(BY SHRI. ADITYA SONDHI, SENIOR ADVOCATE FOR
SHRI. KARAN JOSEPH, ADVOCATE)
AND:
THE ADDITIONAL COMMISSIONER
OF CENTRAL EXCISE
OFFICE OF THE COMMISSIONER
OF CENTRAL EXCISE
BENGALURU I COMMISSIONERATE
P.B.NO.5400, CR BUILDING
QUEENS ROAD
BENGALURU-560 001 ... RESPONDENT
(BY SHRI. JEEVAN J. NEERALGI, ADVOCATE)
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Crl.P. No.1691/2018
THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO
QUASH THE IMPUGNED ORDER DATED 08.02.2018 PASSED
IN CRL. REVISION PETITION NO.179/2015 BY THE LVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
(CCH-57) (AT ANNEXURE 'A') AND PROCEEDINGS IN
C.C.NO.89/2011 BEFORE THE COURT OF THE SPECIAL COURT
(ECONOMIC OFFENCES), BANGALORE.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
Heard Shri Aditya Sondhi, learned Senior Advocate for the petitioner and Shri Jeevan J.Neeralgi, learned advocate for the Respondent.
2. First petitioner-company is an Assessee under the Central Excise. An order in Original No.19/2007 dated 15.10.2007 was passed by the Additional Commissioner of Central Excise, raising a demand of Rs.38,24,985/- and a duty cess of Rs.20,713/- against first petitioner. Further, a penalty of Rs.38,45,698/- was also imposed. Petitioners challenged the order in original before the Commissioner of Central Excise(Appeals) who has dismissed the appeal vide order dated 30.01.2008. 3 Crl.P. No.1691/2018 Petitioners challenged the said order before the Customs, Excise and Service Tax Appellate Tribunal (CES TAT), who by order dated 12.11.2008, remanded the matter to the Commissioner of Appeals. The Commissioner of Appeals by order dated 28.09.2011 has allowed the appeal in part and set aside the demand. Both Assessee and the Revenue have challenged the said order before the CES TAT and the appeals are pending adjudication.
3. In the interregnum, the Joint Commissioner of Central Excise filed a private complaint against the petitioners before the learned Magistrate alleging commission of offences punishable under Section 9 & 9AA of the Central Excise Act, 1944.
4. Having taken cognizance, learned Magistrate has issued process. The petitioners moved the Special Court for Economic Offences seeking discharge. Learned Magistrate considering the prayer made in the application, discharged the petitioners by order dated 4 Crl.P. No.1691/2018 22.09.2014. The Revenue challenged the said order of discharge before the learned Sessions Judge who vide order dated 08.02.2018 has allowed the revision petition and set aside the order of discharge passed by the Special Court for Economic Offences and remitted the matter to proceed in accordance with law.
5. Shri Aditya Sondhi, learned Senior Advocate contended that by a Board Circular dated 04.04.1994 the Revenue has enhanced the monetary limit for launching prosecution from Rs.5 lakhs to Rs.25 lakhs. He further argued that admittedly order in appeal was passed on 28.09.2011, wherein the Commissioner of Appeals has confirmed the duty and penalty of Rs.2,81,119/-. Further, adverting to Board Circular issued on 23.10.2015, Shri Sondhi submitted that monetary limit has been further enhanced to Rs.One Crore/-. Based on this factual matrix, Shri Sondhi argued that it is settled position in law that Board Circular is binding on the Revenue and the benefit 5 Crl.P. No.1691/2018 flowing there from shall inure to the benefit of the assessee.
6. Shri Jeevan J.Neeralgi, learned advocate for the respondent argued in support of the order passed by the learned Sessions Judge.
7. It is indisputable that Commissioner of Appeals has passed order on 28.09.2011 confirming the payment of duty penalty of Rs.2,81,119/-. As on the said date, Board Circular dated 04.04.1994 bearing No.F.208/31/97-CX.6 was in force where under monetary limit for launch of prosecution was raised to Rs.25 lakhs.
8. The demand confirmed by the Commissioner of Appeals which is pending adjudication before the CESTAT, being less than Rs.3,00,000/-, the prosecution launched by the Revenue in this factual matrix is untenable. Learned Magistrate has discharged the petitioners by recording that the point urged by the petitioners-accused is purely a point of law as to whether 6 Crl.P. No.1691/2018 a prosecution was maintainable in view of the board circular, it has further recorded that in view of the said circular, the prosecution was not maintainable.
9. In the light of the above discussion, no exception can be taken to the view expressed by the learned Magistrate discharging the petitioners.
10. Resultantly, this petition merits consideration and is accordingly allowed. The order dated 08.02.2018 in Crl.R.P.No.179/2015 passed by the LVI Additional City Civil and Sessions Judge, Bangalore, is set aside. The order dated 22.09.2014 in C.C.No.89/2011 passed by the Presiding Officer, Special Court for Economic Offences, Bangalore, is restored.
Sd/-
JUDGE Yn.