TMI Blog2010 (8) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... anantha Raj, Crl.OPs : Mr.Sivam Sivanantha Raj For Respondents in Mr.S.M.Deenadayalan, Crl.OPs : COMMON ORDER The petitioner in Crl.OP No.8222 of 2007 is the Proprietrix of M/s.Dagger Die Cutting, Chennai -98 and she is arrayed as Accused No.1. The petitioner in Crl.OP No.8223 of 2007 is the Chief Executive Officer of the above said concern and he is the husband of Accused No.2 and he is arrayed as Accused No.2 in E.O.C.C.No.144 of 2006 pending of the file of the the Court of Additional Chief Metropolitan Magistrate, Economic Offences, Egmore, Chennai. 2. The above said petitioners filed Criminal Original Petitions to quash the above said case. 3. Facts in brief for disposal of these petitions are as follows - [a] The respondent in these original petitions filed a complaint in E.O.C.C.No.146 of 2006 on the file of the above said Court for prosecuting the petitioners herein for the commission of the offences under Sections 9(1)(b)(i), 9(1)(bb)(i), 9(1)(bbb)9(i) and 9(1)(d)(i) r/w Section 9AA of Central Excise Act, 1944, as amended. As per the averments made in the complaint, the Accused No.1 namely Tmt.Rukshana Deshpande is the Proprietrix of M/s.Dagger D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT and the matter was remanded to the original authority for grant of benefit of Modvat Credit to treat the price as cum duty. On demand, duty payment of Rs.45,31,233/- under Section 11A and charged proportionate interest under Section 11AB of the Central Excise Act 1944 and was once confirm. A penalty of Rs.38,98,258/- was also imposed under Section 11AC of the above said Act on Accused No.1 and penalty under Rule 173Q of Central Excise Rules 1944 amounting to a sum of Rs.19,00,000/- was imposed on Ms.DDC and also a penalty of Rs.9,00,000/- was imposed upon Accused No.2 under Rule 209A of Central Excise Rules 1944. According to the respondent/complainant, Accused No.2 was incharge of day-to-day affairs of Accused No.1 and was found to have been contravened the provisions of Rule 9(1), 52A, 53, 173B, 173C, 173F, 173G and 174 read with Rule 226 of the Central Excise Rules 1944 since they - (i) had not applied for and obtained a Central Excise Registration Certificate for the manufacture and clearance of excisable goods, immediately after crossing the prescribed exemption limits under Notification No.1/93-CE dated 28.02.93 as amended during the above period, (ii) had failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to the learned counsel appearing for the petitioner, even though the said order came to be passed as early as on 30.04.2010, no appeal has been filed by the respondent and as such the findings regarding 'related person', had attained finality. 7. The learned counsel for the petitioners would further submit that the criminal proceedings came to be lodged against the petitioners/accused solely on the basis of the findings recorded by CESTAT on the premise that the accused are related persons and are having mutuality of interest and since the order passed by CESTAT has been set aside in the above said writ petition, the complaint is liable to be quashed. 8. The learned counsel appearing for the petitioner in support of his statement has placed reliance upon the following decisions :- [a] 1982 (2) SCC 543 [Uttam Chand v. I.T.O.] [b] 1995 Supp (2) SCC 724 [G.L.Didwania and another v. Income Tax Officer] [c] 2002 (130) E.L.T. 498 (Mad.) [Swathy Chemicals Ltd. V. Union of India] [SB] 9. Per contra, Mr.S.M.Deenadayalan, learned Special Public Prosecutor would submit that the steps are being taken to challenge the order dated 30.04.2010 made in W.P.No.25580 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce this Court has found that there was no mutuality of interest and that the respondent herein was not able to establish that Accused No.1 and M/s.DI are related persons, the continuance of the criminal proceedings launched by the respondent would clearly amount to an abuse of process of law and therefore the said proceedings are liable to be quashed. 14. Let this Court consider the decisions relied upon by the learned counsel appearing for the petitioners. In 1982 (2) SCC 543 [Uttam Chand v. I.T.O.], Income Tax Authorities launched prosecution against the appellant and others on the ground that when the Partnership firm was not genuine and a false return was filed. The Income Tax Appellate Tribunal found that the firm in question is a genuine one. Based on such findings, the accused therein sought for quashment of the criminal proceedings and it was negatived and challenging the legality of the same, an appeal was filed before the Hon'ble Supreme Court. The Hon'ble Supreme Court of India on the above cited decision held that in view of the finding recorded by the Income Tax Appellate Tribunal, criminal proceedings could not be continued and therefore allowed the appeal and qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utor for the respondent, the decision reported in 1990 SCC (Cri) 579 [Collector of Customs Central Excise v. Paradip Port Trust] = 1990 (4) SCC 250 pertains to the confiscation of goods and conveyance and imposing of penalty under Customs Act and also launching prosecution and punishment under Chapter 16 of the Customs Act 1962. The Hon'ble Supreme Court in Para 10 of the said judgment has held as follows :- "10. From the foregoing provisions, we find that for the same transaction, act or occurrence in an appropriate case, there may be prosecution and punishment under Chapter XVI and confiscation of goods and conveyances and also imposition of penalty not exceeding one thousand rupees for contravention of any of the provisions of the Act or abetment of any such contravention and for failure to comply with any provisions of the Act with which it was one's duty to comply where no express penalty is elsewhere provided for such contravention or failure. It may also be possible that an act or event which entails punishment under Chapter XVI may by itself or with other ingredients also amount to a contravention of any of the provisions of the Act or abetment of any such contraventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egality of the said order, the criminal proceedings on the same set of facts cannot be continued. However, the learned Special Public Prosecutor would contend that the findings recorded by this Court in the above said writ petition cannot be put as a bar to continue the criminal prosecution against the petitioners as the averments made in the complaint prima facie disclose the commission of the offences for which the accused are charged and that urgent steps are being taken to prefer writ appeal challenging the legality of the order passed in writ petition including the maintainability. 23. It is the further submission of the learned Special Public Prosecutor that the criminal prosecution and adjudication proceedings act on different field and therefore quashment of the CESTAT order will have no baring on the criminal proceedings. 24. The issue arise for consideration is whether the criminal prosecution in E.O.C.C.No.144 of 2006 pending on the file of the Addl. Chief Metropolitan Magistrate, Economic Offences, Egmore, Chennai can continue inspite of the fact that the order of CESTAT was quashed by this Court in W.P.No.25580 of 2003 ? 25. No doubt the decisions relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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