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TMI Blog2009 (5) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 damages in respect of some transaction. This suit was filed in March, 2008. Thereafter petitioners approached this Court on 12-3-2008 with present petition seeking following reliefs :- "15. In the premises aforesaid, the petitioners pray as under: A. Your Lordships be pleased to issue a writ of or in the nature of mandam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authorities have summoned Petitioner No. 2 as well as his brother Mukesh Sayani on number of occasions, but neither Petitioner No. 2 nor his brother Mukesh Sayani has ever appeared before respondent authorities pursuant to the summons on the alleged apprehension of being mishandled by respondent authorities or of being falsely implicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 the goods which talks about the statement given by petitioner No. 2 on his own handwriting and the theory of so called beating and coercion, which was nothing but an after thought only to browbeat the officers so as to prevent them from discharging their duties. 5. We have heard learned Sr. Advocate Mr. Joshi appearing with Ms. Megha Jani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erring 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 proceedings. Differently put, they have already resorted to alternative remedy available to them. 10.1.1 The factum with regard to giving statement by petitioner No. 2 on 14-2-2008 as stated on page No. 86 of the memo of reply affidavit on record (interim page-12) has not been controverted by the petitioners anywhere on the record. It is important to no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 party concerned to explain 1 put forth their case/version. Stand of petitioners of not appearing before respondent authorities would only cause hindrance in a lawful process. Be that as it may; the tact remains that the petitioners have not cooperated in investigation despite directions of this Court, and the stand is that although the petitioners may ..... X X X X Extracts X X X X X X X X Extracts X X X X
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