TMI Blog2009 (5) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... as given by the Petitioner No. 1 company that, that transaction was of a previous month and therefore the price prevailing in the said month may not be considered. On 14-2-200S premises of the petitioner company was searched and certain documents and materials were seized by drawing a panchnama. At that time initially Mukesh Sayani, brother of Petitioner No. 2 was presetit and thereafter Petitioner No. 2 also appeared at the place. It transpired from the panchnama that Mukesh Sayani looks after company affairs in absence of Sanjay Sayani. Statements of Sanjay Sayani and Mukesh Sayani were recorded by respondent Customs authority at that point of time. Thereafter a complaint was made by Petitioner No. 2 to Police Commissioner, Rajkot, in respect of what has transpired at the time of said raid/search seizure. Subsequently a criminal complaint came to be lodged in the Court of learned Chief Judicial Magistrate by Petitioner No. 2 alleging various offences against Vinay Kumar, Zala, Rajesh Sharma and Ravindra Yadav. Thereafter a Special Civil Suit has been instituted by the petitioners in the Court of Principal Sr. Civil Judge, Jamnagar bearing Special Civil suit No. 20/2008 for dama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions and safeguards which may be suggested by the respondents while issuing such procurement certificates. The second bank guarantee of Rs. 12.50 lacs will be furnished in the first week of May 2008. Both these bank guarantees, viz. Bank guarantees for the total amount of Rs. 25 lacs shall be for securing the petitioners' liability, if any, in respect of the goods, which are imported and are to be imported under such duty free import/procurement certificates and the petitioners shall comply with the directions to be issued by the respondents for the purpose of safeguarding interest of the revenue. It is clarified that the petitioners will not be required to furnish bank guarantee at the time of each import or at the time of obtaining each procurement certificate. It is also directed that the petitioners shall cooperate with the respondent authorities in the investigation/inquiry, which is pending. 5. It is clarified that the observations made and the directions issued herein above are without prejudice to the rights and contentions of the par ties and they may not be treated as expression of any opinion either way." 3. It appears that, thereafter, the respondent autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia contented that the petition is filed only with a view to thwart the investigation being carried out against them. This Court in exercise of its jurisdiction under Article 226 of the Constitution may not interfere with the same. The petitioners have not come out with clean hands as they have not narrated correct facts before this Court. The documents and material gathered during search operation conducted on 14-2-2008 as well as the statement of Kishorebhai K. Bhagat, the Accountant and statement of Sanjay Natvarlal Sayani, Petitioner No. 2, recorded on 14-2-2008 under provision of Section 14 of the Central Excise Act 1944 contains unequivocal admission with regard to recovery of draft chits from possession of said Mr. Bhagat and also which were termed to be miscellaneous chits of M/s. Bhavin Impex Pvt. Ltd, the Petitioner No. 1. The material indicated clearly that there is clandestine removal made by the petitioner which may come to Rs. 2=91 Crores, involving Central Excise Duty worth Rs. 67=00 lacs approximately, which indicate claim of clandestine removal by the petitioners. The averments made in page-88 of the affidavit-in-reply also indicate clandestine removal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he stand of Petitioner No. 2 is the same throughout. The statement is in respect of Mukesh Sayani, who may be a director of the company, who is not a party in this proceeding. Lastly Mr. Oza submitted that on account of disobedience of order of this Court respondent authorities have initiated contempt proceedings against Petitioner No. 2 by preferring Misc. Civil Application (Contempt) No.2721/2008, wherein notice has been issued by the Court. According to Mr. Oza, if the statement is accepted and some indulgence is granted, then, it can be used by the petitioners as a defence in the contempt petition. Lastly Mr. Oza submitted that the investigation is dodged by the petitioners under one pretext or the other and simultaneously are enjoying interim relief which cannot be permitted to be done, and, therefore, the petition may be dismissed. 10.1 We have taken into consideration rival submissions. We find that there is no dispute on legal authority in the respondents to inspect the premises, seize the documents and initiate proceedings for investigation. Regarding what is alleged to have transpired on the day of raid, the petitioners have already initiated civil and criminal proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority by 30-9-2008. It is stated that on 26-9-2008 Mukesh Sayani and Sanjay Sayani appeared before respondent authorities with their 'lawyer. but on the said date the officer concerned was not available. But thereafter also petitioner Na 2 has not responded to any summons, inspite of such protection being granted by the Court, and has harped on apprehension, which, looking to the conduct of petitioner No. 2 does not seem to us to be genuine. Petitioner No. 2 seems all determined not to appear before the respondent authorities is thus not ready to cooperate in investigation under on excuse or other. This is clear even from the statement made by learned Sr. Advocate Mr. Joshi upon his instructions. Petitioners' stand is that whatever were required to be stated by the petitioners were already stated earlier and the questionnaire may be sent to them. When inquiry is to be made in respect of a suspected evasion of duty, which is ordinarily done in a clandestine manner, it would raise many questions which can be answered only upon the person concerned being questioned. This would not only help the investigation/inquiry being conducted in right direction but would also help the par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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