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2015 (8) TMI 1227 - MADRAS HIGH COURT

2015 (8) TMI 1227 - MADRAS HIGH COURT - 2015 (325) E.L.T. 60 (Mad.) - Obtaining Export obligation discharge certificate fraudulently Cancellation of anticipatory bail Because of fraudulent methods adopted by respondent to obtain Export Obligation Discharge Certificate, there is loss to Government of India and in order to safeguarding sum of public money criminal proceedings were initiated against which anticipatory bail was granted to respondent Petitioner seeking cancellation of anticipat .....

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s for granting bail was incorrect will not serve as ground for cancellation of anticipatory bail granted to respondent Decided against petitioner. - Crl.O.P.No.5584 of 2015 - Dated:- 18-6-2015 - R. Subbiah, J. For the Appellant : Mr Su Srinivasan, Asst. Solicitor General of India For the Respondent : Mr R Gandhi, SC, for Mr R G Narendran ORDER The present criminal original petition has been filed to cancel the anticipatory bail granted to the respondent in Crl.M.P.No.3860 of 2015 dated 13.2.20 .....

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under Export Promotion Capital Goods (EPCG) Scheme under various EPCG licences and failed to meet the export obligation fixed at the time of import of the machineries and managed to get the export obligation discharge certificate (EODC) by adopting fraudulent methods, the Directorate of Revenue Intelligence (DRI) visited the above textile mill on 14.8.2014 and verified the records and machineries imported under EPCG Scheme. Under mahazar proceedings, the machineries imported under EPCG licence .....

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to have met out by collecting and submitting the shipping bills of certain other parties, who had no business connection, link or relationship with the respondent. (b) A statement dated 14.8.2014 was recorded from the Director of M/s.P.V.Spinning Mill India (P) Ltd., under Section 108 of the Customs Act, 1962. So far, the respondent had obtained EODC's in respect of EPCG licences 3230007337 dated 10.7.2006, 3230009062 dated 9.2.2007, 3230014306 dated 19.1.2010, 3230016822 dated 1.6.2011 and .....

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cheme to the value of ₹ 33,92,22,782/- and should have realised the foreign exchange of India. But, the respondent had not made any exports and had not realised any foreign exchange to India on account of exports of goods manufactured with the use of capital goods imported under the EPCG scheme and thereby violated the essential condition of the scheme and became ineligible to avail the exemption continuously and also liable to pay the differential import duty, which they had not paid at t .....

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ipping bills filed before the JDFT for getting the EODC were fabricated documents and the export obligation claimed to have been met through third party shipping bills, were not the exports of the respondent and the result is the respondent had not fulfilled the export obligation. The respondent neither exported any goods manufactured with the use of the capital goods imported under EPCG scheme and realised foreign exchange nor made any exports through third parties viz., merchant exporters from .....

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o the value of ₹ 33,92,22,782/-, he has brought loss to the reserve of foreign exchange of the nation by not realizing the foreign exchange equivalent value of ₹ 33,92,22,782/-. (d) The case against the respondent is that because of his fraudulent methods adopted to obtain Export Obligation Discharge Certificate, there is a loss of ₹ 4.12 Crores to the Government of India and in other words, the issue is about safeguarding ₹ 4.12 crores of public money. The respondent fil .....

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sureties for a sum of ₹ 2,00,000/- and also with other conditions. The learned Principal District and Sessions Judge, Coimbatore has granted anticipatory bail to the respondent on the following grounds viz., (i) Prosecution is not mandatory under the Customs Act, 1962. (ii) All the machineries have been seized by the department for addressing its claim. (iii) The documents and other papers were already seized by the department. Now, the present petition has been filed for cancellation of .....

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duty evasion to the tune of ₹ 4.12 crores. But, he purposely omitted to state about the seizure of the machineries worth about ₹ 6,05,00,000/- from the respondent. The respondent is fully cooperating with the petitioner and a mere reading of the mahazar clearly establishes the said fact. Absolutely, no ground has been made out for cancellation of the anticipatory bail granted to the respondent. Thus, he sought for dismissal of the petition. 5. The main submission of the learned Assis .....

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oms, right from the rank of the Inspectors to Assistant Commissioners, if any person involved in the offence is not cooperating with the investigation, engaging himself in tampering with evidence or intimidating the witnesses, then the investigating officer is empowered to arrest the person for free and fair investigation. Para 15 of Chapter 30: Offences and Penal Provisions of the Customs Manual of Central Board of Excise and Customs issued on 2.2.2012, deals with prosecution, which says that n .....

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tifying prosecution, then a criminal complaint could be filed. Therefore, the reason assigned by the Court below that the prosecution is not mandatory under the Customs Act, 1962 is not correct. Similarly, it is also not correct that the petitioner has seized all the machineries of the respondent to address its claim. Similarly, the petitioner has not seized all the documents and other papers, since the respondent is not cooperating with the investigation. Only if custodial interrogation is give .....

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e same proposition, he has also relied upon the judgments reported in LAWS (SC)-2013-5-27 - Central Bureau of Investigation v. V.Vijay Sai Reddy, LAWS (SC)-2008-4-163 - Dinesh M N v. State of Gujarat and the decision of the Kolkata High Court made in C.R.M.No.4830 of 2014 in the matter of Directorate of Revenue Intelligence, Calcutta. 6. On the other hand, learned senior counsel appearing for the respondent by inviting the attention of this Court to the copy of the mahazar prepared by the invest .....

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im, the same could be cancelled. In the instant case, absolutely, there is no allegation against the respondent that he is abusing the concession given to him. Thus, he sought for dismissal of the petition. 7. Keeping the submissions made on either side, I have carefully gone through the entire materials available on record. 8. Though several submissions were made by the learned Assistant Solicitor General of India stating that the reasons assigned by the Court below for granting anticipatory ba .....

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, wherein it has been held as follows:- "Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of adm .....

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fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial." 9. In the decision reported in (2009) 10 Supreme Court Cases 652 - Hazari Lal Das v. State of West Bengal and another, the Hon'ble Supreme Court by relying upon the above said decision in the case of Dolat Ram and others v. State of Haryana reported in (1995) 1 Supreme Court Cases 349, has held as follows:- "7. There is nothing on record that there has been interference or at .....

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