TMI Blog2007 (4) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... by M/s. Ganton Limited, London in Swiss Banking Corporation Zurich, from the accounts of KEPL. 3. The documents were forwarded by banks alongwith the copies of Bill of Entry of Warehousing, whereas the Bill of Entries for home consumption were not filed. Samples were drawn from the office of the Customs STPI, Noida from the stock of AutoCAD and representatives of M/s. Hindustan Office Product Limited, (one of the authorized distributors of USA based company M/s. Auto Desk) as an expert were consulted. The goods were inspected; it was alleged that Accused No. 1 i.e. M/s. Kudos Exports Pvt. Ltd. had imported pirated software for an exorbitant price. 4. In the course of investigation and proceedings, statements of Sh. Ravi Bhatnagar, Director of M/s. Kudos Exports Pvt. Ltd. (also arrayed as third accused) were recorded under Sections 108 of the Customs Act as well as under Section 40 of the FERA. He alleged that all actions performed by him were under directions of the firth accused Abhishek Verma, Chairman of the second accused, Esam India Limited. Abhishek Verma, admitted to the facts, as well as about his being a Director of M/s. Esam Trading Company, responsible for its decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the import transactions undertaken by the noticee company were with the ulterior motive of transfer of foreign exchange in surreptitious manner in the guise of import payments. During the course of investigations by the directorate as well as during adjudication proceedings no one came forward on behalf of the noticee company to explain the transaction or adduced any submissions in its defense. The charge against the company for contravention of Sections 8(3) and 8(4) of the FERA, 1973 are therefore well established based on the materials and evidence gathered and relied upon in the SCN. x x x x x x x x 61. As regards the charges against S/Sh. Abhishek Verma, Sandeep Puri, Jitendra Agarwal, D.K. Rastogi and M.A. Khan, notice No. 5 to 9 on analysis of the materials on record. It is observed that Sh. Abhishek Verma was the chairman of M/s. Esam and was the pivotal around which the whole activities of M/s. Esam had been taking place. In his defense reply, Sh. Verma submitted that he was no more connected with M/s. Esam during the period in which the import transactions which are the subject matter of the SCN took place. His submissions revolved around the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ails furnished by them vide letter dated 14-3-2000 respectively confirmed that applications were submitted to the said Embassies for obtaining visas for the notice's travel abroad for business promotion of M/s. Esam. 64. The depositions of Sh. Ravi Bhatnagar, Director of M/s. KEP and those of S/Sh. Sandeep Puri, Jitendra Agarwal and a number of other persons whose statements were relied upon as evidence together with the detail forwarded by the bankers of M/s. Esam established in undisputed manner about the nexus of Sh. Verma in the import transaction of Ms. KEP. It further established that the version of Sh. Verma that after 1993 he was in no way connected with Ms/s. Esam was contrary to facts on record. In fact the various record read with the depositions of the concerned persons displayed that Sh. Abhishek Verma was the sole authority who had enjoyed unquestionable and enormous power of decision making not only in M/s. Esam but also in M/s. KEP and the other directors were acting according to the tunes of Sh. Verma, on careful consideration of the materials. It became amply clear that the charges against M/s. Esam Trading Co. Ltd. (M/s. Esam India Ltd.) and Sh. Abhishek Verma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mental or adjudicatory proceedings would not entitle him to escape prosecution in criminal proceedings which are independently maintainable. Reliance was placed upon P. Jayappan v. S.K. Perumal, First Income-Tax Officer, Tuticorin, 1984 (Supp) SCC 437; Commissioner of Income Tax. Mumbai v. Bhupen Champaklal Dalai and Anr. (2001) 3 SCC 459 and Surkhi Lal v. Union of India, 2005 (3) JCC 1788. 11. This Court in the judgment reported as Sunil Gulati v. R.K. Vohra, 2007 (1) JCC 220 which was relied upon by the learned counsel for the petitioner during the hearing, elaborately considered the various nuances of identical problems, where adjudication proceedings culminated in orders favouring the accused/assessee and where in exercise of independent powers prosecution or complaints were launched. The Court after noticing various judgments including Supreme Court rulings and the judgment in Standard Chartered Bank's case [2006 (197) E.L.T. 18 (S.C.)] (supra) was of the opinion that though seemingly there was a facial conflict in the different strands of reasoning, yet on a deeper analyses, it was apparent that it was one thing to say that two proceedings could be maintained as a matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were on different facts, it would have not bearing on criminal proceedings. If, on the other hand, the exoneration in the adjudication proceedings is on merits and it is found that allegations are not substantiated at all and the concerned person(s) is/are innocent, and the criminal prosecution is also on the same set of facts and circumstances, the criminal prosecution cannot be allowed to continue. The reason is obvious criminal complaint is filed by the departmental authorities alleging violation/contravention of the provisions of the Act on the part of the accused persons. However, if the departmental authorities themselves, in adjudication proceedings, record a categorical and unambiguous finding that there is no such contravention of the provisions of the Act, it would be unjust for such departmental authorities to continue with the criminal complaint and say that there is sufficient evidence to foist the accused persons with criminal liability when it is stated in the departmental proceedings that ex-facie there is no such violation. The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as criminal complaint are identical an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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