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2016 (11) TMI 468 - RAJASTHAN HIGH COURT

2016 (11) TMI 468 - RAJASTHAN HIGH COURT - TMI - Proceedings against the officer of the department - Inflation of value of exported goods - bar u/s 155(2) of the CA, 1962 - Section 40 of the Central Excise Act, 1944 - Held that: - The words "no proceeding" appearing in sub- section (2) of Section 155 of the Customs Act, in my humble opinion, do not include criminal prosecution, as for the protection pertaining to prosecution, there is specific provision under sub-section (1) of Section 155 of th .....

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ng the protection under Section 155(1) of the Customs Act and as per the discussions made by me hereinabove, the protection of Section 155(2) of the Customs Act is not available to the petitioner. Thus, there is no illegality in the impugned order. - Petition dismissed - decided against petitioner. - S. B. Criminal Revision Petition No. 1282/2016 - Dated:- 8-11-2016 - Pankaj Bhandari , J. Mr.Mahesh Bora, Senior Advocate assisted by Mr.Arun Kumar for the petitioner Dr.Sachin Acharya, Special .....

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ry and the goods were dispatched to Dubai and later on it was revealed that the value of the goods when exported from India was inflated. 3. It is also contended that only legal question is involved in this case, there is a bar under Section 155(2) of the Act and the court below has not considered the judgments of the Apex Court reported in Public Prosecutor, Madras Vs. R.Raju & Anr., 1978 (2) ELT (J 410) (SC) as well as of the Calcutta High Court in Ashok Kumar Singh Vs. State of West Benga .....

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petition. His contention is that the matter is at the fag end of the trial. Section 40(2) of the Central Excises and Salt Act, 1944 is not pari materia with Section 155(2) of the Customs Act, 1962. It is also contended that previously the petitioner has moved application under 155(1) of the Act and the same stands rejected upto the High Court. Now the petitioner cannot take recourse to Section 155(2), which is not applicable to the facts of this case. It is also contended that the judgments cit .....

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; Anr. (Criminal Appeal No.159/2016 decided by Hon'ble Apex Court on 29.06.2016). 6. I have considered the arguments advanced before me as well as the rulings cited by the rival parties. 7. In the judgments cited before me, the Apex Court and the High Courts have dealt with the provisions of the Central Excises and Salt Act, 1944, the Central Excise Act, 1944 and the Customs Act, 1962. Therefore, it would be appropriate to first refer to the relevant provisions for arriving at a just decisio .....

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iration of six months from the accrual of the cause of action or from the date of the act or order complained of." 9. Section 40 of the Central Excise Act, 1944 as amended with effect from 01.09.1973 reads as under:- "40. Protection of action taken under the Act.- (1) No suit, prosecution or other legal proceeding shall lie against the Central Government or any officer of the Central Government or a State Government for anything which is done, or intended to be done, in good faith, in .....

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accrual of such cause." 10. Section 155 of the Customs Act, 1962 reads as under:- "155. Protection of action taken under the Act.- (1) No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done, in good faith, in pursuance of this Act or the rules or regulations. (2) No proceeding, other than a suit, shall be commenced against the Central Government or .....

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. The Hon'ble Apex Court held that the limitation as provided under sub-section (2) of Section 40 would be applicable as no suit, prosecution or other legal proceedings can be instituted after the expiry of six months from the accrual of the cause of action. 12. The Punjab & Haryana High Court in Sunil Kumar Vs. Central Bureau of Investigation (supra) and the Calcutta High Court in Ashok Kumar Singh Vs. State of West Bengal (supra) placing reliance on Public Prosecutor, Madras Vs. R.Raju .....

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e has been a drastic change in the provision, as quoted above. Sub-section (2) of Section 40 of the Central Excise Act, 1944, as amended after 1973, is some what similar to Section 155(2) of the Customs Act, 1962. But sub-section (2) of Section 40 of the Central Excises and Salt Act, 1944, which existed prior to 1973 is not at all pari materia with Section 155(2) of the Customs Act, 1962. 14. Sub-section (1) of Section 155 of the Customs Act gives a protection to the Central Government or any of .....

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Customs Act was rejected upto the High Court. Counsel for the petitioner is seeking protection under sub-section (2) of Section 155 of the Customs Act on the ground that the words "no proceeding" mentioned in sub-section (2) includes criminal prosecution, and therefore, the contention of counsel for the petitioner is that a month's previous notice in writing is mandatory. 16. The words "no proceeding" appearing in sub- section (2) of Section 155 of the Customs Act, in my .....

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