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TMI Blog2018 (1) TMI 1584X X X X Extracts X X X X X X X X Extracts X X X X ..... k based on the inflated value. 3. In furtherance of the said criminal conspiracy of cheating the customs department, the petitioner and other officers of customs department had obtained illegal gratification of Re one per US dollar of the export consignment value for clearance and sanction of duty draw back incentives. In that way, from 10 firms which were mostly fictitious floated by private individuals, a total sum of Rs. 5,77,59,493/- had been sanctioned as duty draw back causing wrongful loss to the Government the said sum. The investigation has revealed that the actual value of the goods exported and foreign remittance received from the foreign buyer being Rs. 23,105,193/- by inflating the invoices and shipping bill duty draw back has been sanctioned as if good worth Rs. 518,984,176/- has been exported. 4. The petitioner who is arrayed as one of the accused who was serving as Superintendent of customs in Coimbatore during the relevant point of time, claims that the case has been foisted against him based on wrong notion of the prosecution that petitioner is the proper officer for Valuation, Examination and sanction of draw back. While the custom manual holds the Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Exports and M/s. Swathi Exports at Air Cargo Complex, Coimbatore to the consignee at Dubai. Thirumoorthy (the petitioner herein) Superintendent, Shri Gnanasambandam and Shri H.Narayanan, fixed the over invoiced value of the consignments, by seeing the same export consignment value for clearance and sanction of drawback incentives. Superintendents Shri A.Thirumoorthy (petitioner herein), Gnanasambandam and H.Narayanan knowingly cleared the low priced goods a the over invoiced value, by suitably instructing the inspectors working under them, by assessing, inspecting and issuing Let Export orders for the consignments of the said companies. 9. The learned Additional Public Prosecutor, while meeting out the judgments cited by the petitioner counsel submitted that, the said judgments are of no binding effect on this court. Further, the said judgments are misconceived on facts and law. The said judgments are resultant of wrong understanding of section 155 of the Customs Act. While on facts, prosecution has collected materials to prove the accused persons including the petitioner had acted in malafide and criminal intention to cheat the Government and also obtained illegal gratification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flate valued goods with intention to avail duty draw back incentives. This criminal act had been committed by the petitioner to get pecuniary advantage of obtaining illegal gratification at the rate of Re one per USD show as export value of the goods. It is the specific case of the prosecution that the petitioner during his tenure as Superintendent of customs at Air Cargo, Coimbatore between 2001 to 2003 had through his subordinates issued Let Export order with inflated invoice value and shipping bills. Therefore, contention of the petitioner that he has no role in said conspiracy is totally unsustainable. 15. In so far the immunity provided under section 155 of the Customs Act, it is to be read and understood by its text and context. The judgments cited by the learned counsel for the petitioner is not in consonance to the legislation or to the interpretation as given by the Supreme Court in Raju's cited supra. Section 155 of the Customs Act reads as under: (1) No suit, prosecution or other legal proceeding 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 pursua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this interpretation is accepted, then offenders will enjoy larger protection than the limited and restricted immunity provided to constitutional authorities such as President and governors under Article 361 of the Indian Constitution. 18. Therefore, sub-sections(1) and (2) of section 155 has to be read conjointly and not disjointly. "Good faith" and "anything done pursuance of this Act" (to be read as customs Act) which are twin pre-conditions mentioned in subsection (1) to be satisfied primarily. For those who satisfy the said twin conditions, proceedings shall be initiated after expiry of one month notice and within 3 months from the date of cause of action as per sub-section (2) of Section 155 of the Act. If the pre-conditions mentioned in sub-section (1) is not attracted, the compliance of mandate mentioned in sub-section (2) does not arise. 19. The judgement of the Supreme Court in Raju's case cited supra and relied by the Calcatta High Court and Punjab and Haryana High court which in turn relied by the learned counsel for the petitioner is factually different from the case in hand. Raju's case arise out of private complaint under the Central Excise and Salt Act. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be done in good faith in pursuance of the Act or the rules or regulations. There is a bar on filing a suit, prosecution or other legal proceeding, if the act is done in good faith. Counsel for the petitioner is not claiming the protection as provided under sub-section (1) of Section 155 of the Customs Act, as it is contended by the learned counsel that the protection sought for under Section 155(1) of the 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. 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 the Customs Act. Subsection (2) of Section 40 of the Central Excises and Salt Act, which has been dealt with by the Hon'ble Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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