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TMI Blog2013 (8) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... , viz., M/s.Cyclops Groups imported six consignments and cleared the same for home consumption. It is further allegation of the complainant that the accused, in order to avoid Anti Dumping Duty in terms of notification No.147/2003-Cus dated 17.10.2003, mis-declared the consignments of measuring tapes to be of Malaysian origin, whereas the goods are of Chinese origin and originated and exported from China. After completion of investigation, the Directorate of Revenue Intelligence, Zonal Unit, Bangalore issued a show-cause notice dated 28.11.2006 in respect of the above said consignments answerable to the Commissioner of Customs, Seaport-Import, Chennai. 2. While the case was pending, the accused filed the discharge petition in Crl.M.P.No.18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner in the said application is that from the evidence adduced, it is clear that the consignments had been imported and cleared for home consumption which constituted a concluded assessment under Section 47 of the Customs Act. Further, such concluded assignments had not been reopened in a manner known to law. In view of the assessment having not been re-opened, the proceedings before the trial Court is not maintainable under law. Further, the learned Magistrate failed to note that the invoice, packing list, certificate of origin and bill of lading filed by the petitioners before the Customs authorities had not been disputed or alleged to be forged. Further, there is no material or evidence let in by the prosecution to disprove the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold from Malaysia. As such, when there is sufficient and more significant evidence to state that the goods imported are from Malaysia, which has not been controverted, then in such circumstances, Anti Dumping Duty cannot be levied, as the same is leviable only if the goods originated or was exported were from China, as per terms of notification No.147/2003, Customs dated 07.10.2003. The trial Court has committed grave error in as much as it has taken cognizance of the complaint on the strength of a sanction order issued by the Commissioner of Customs (Seaport-Import), Chennai, while the adjudication on the similar set of facts are still pending adjudication that too before the very same authority. Therefore, without knowing the outcome of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying principle being higher standard of proof in criminal cases - If exoneration in adjudication is on technical ground and not on merit, prosecution may continue - Also, adjudication proceeding by Enforcement Directorate is not prosecution by Court of law to attract Article 20(2) of Constitution of India or Section 300 of Code of Criminal Procedure, 1973. (Majority per: Harjit Singh Bedi and Chandramauli Kr.Prasad, JJ)" 8. The highly competent counsel for the respondent argued that on the side of the prosecution, four witnesses were examined and the case is posted for defence side evidence. Therefore, the accused has got an opportunity to establish their case before the trial Court and hence, at this stage, the discharge petition is not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner. All the documents seized against this area, clearly show that the invoice/certificate of country of origin were fabricated to suit the need of the petitioner to cheat the Government by evading Anti Dumping Duty. This fact has been proved by the fact that all the remittance were made to the original suppliers at China through M/s.Andhra Bank, Bangalore. The verification of the details of the Malaysian Suppliers proves that the firm is only a trading agent and not a manufacturing company. The second accused has forged the documents as though they were signed by his overseas supplier at Malaysia with the name of ALAM & MURTHY. The imports were made at Tuticorin and JLPT, Bombay were based on fabricated documents showing country ..... X X X X Extracts X X X X X X X X Extracts X X X X
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