TaxTMI 
TaxTMI 
2010 (2) TMI 515
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.... which is pending on the file of the Metropolitan Magistrate for past more than 17 years. The Petitioner is Accused No. 3. On the facts as set out in the complaint itself, it is apparent that the Petitioner is not guilty of the offence alleged. The role of the Petitioner is extremely limited inasmuch as he was a non-executive Director of Accused No. 1 M/s. P.J. Pipes & Vessels Ltd. The only role attributed to him was he had a Power of Attorney in his favour from Accused No. 1. However, the Petitioner is neither a shareholder nor has any pecuniary interest in the company. Further, he has absolutely no concern with the day-to-day business and is not responsible therefor. He was not concerned with the transaction of sale of duty free imported raw materials and/or in applying for two duty free import licenses in question. The Petitioner had not subscribed to any of the declarations made to the Customs Authority by the Company. In such circumstances, and when the First Respondent recorded his statement under Section 108 of the Customs Act and issued letters dated 18th April, 1991/25th April, 1991 calling upon the Petitioner to show cause as to why a penalty of Rs. 2.5 lakhs be not impos....
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.... therefore, the Petition be dismissed. 8. The Petition has been argued on the basis of the Judgment rendered by this Court in two Writ Petitions i.e. the case of Raichand C. Jain v. Surendra Prasad reported in 2006 (3) AIR Bom. 411 and in the case of Manoj Kumar Sarangi v. Dy. Commissioner of Cus. (P) R. & I. reported in 2007 (219) E.L.T. 114 (Bom.). Both decisions have been rendered by me and in the second decision I have taken note of identical contention of Mr. Salvi relying on the Supreme Court decision in the case of Standard Chartered & Ors. v. Directorate of Enforcement & Ors. - 2006 (197) E.L.T. 18 (S.C.) or (2006) 2 S.C.C. (Cri.) 221. This decision has also been noted by me. In Manoj Kumar Sarangi (supra) this is what is held by me :- "25. The present case is based upon self-same allegations. All that is alleged is that the charge is under Customs Act and not under I.P.C. but Prevention of Corruption Act. However, the acts of omissions and commissions, if any, are the same. The transaction is the same. The documents are also the same. It is in this context that the adjudication proceedings assume some significance. Although an order was passed by the Commissioner of Cust....
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....of Cr.P.C. can be exercised. Precisely, this has been done in the case of U.N. Mehta by a learned Single Judge of this Court. There the charges were under the FERA. In that case, adjudication proceedings were in favour of the applicant before this Court. The Department did not carry the matter further and allowed the order of the Special Director to gain finality. In these circumstances, after noticing the judgments referred to above, the learned Single Judge has quashed the criminal proceedings. The proceedings have been quashed after noticing the fact that the Department has accepted the finding that the petitioner before this Court has not admitted to transfer of the foreign currency. In doing so, the learned Single Judge has referred to a decision rendered by Delhi High Court to this effect that once the Department does not succeed in proving the charge when the degree of proof is not as rigorous as criminal trial, then an attempt to foist criminal law, when, the degree of proof is more strict cannot be understood. 24. It is not the case of Shri Salvi that in exercise of inherent powers of this Court the reliefs prayed for cannot be granted. He does not dispute that provision ....
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....exist. While exercising powers under the Section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complaina....
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....om duty under Notification No. 513/86 dated 30th December, 1986. The Notification allows import of raw materials and components required for manufacture of goods supplied to ONGC. 10. On certain information, the Directorate of Revenue Intelligence investigated the matter and found that the thread protectors supplied to ONGC were not made of stainless steel and the goods supplied to ONGC were ordinary carbon steel thread protectors. The investigation revealed that out of the imported quantity of 547.962 MT, the Company sold 276.928 MT in the open market and rest of the quantity is seized by DRI. That is how, the show cause notice was issued to the Company. The show cause notice resulted in a finding of the Commissioner of Customs that there is a violation of the duty liability by the Company. The demand on the company therefore, was confirmed. Thereafter, it is a common ground that the Commissioner of Customs passed an order in adjudication proceedings against the present Petitioner as well. The Petitioner had approached the Tribunal and the Tribunal had passed an order in favour of the Petitioner, copy of which order is annexed to the Petition paper-book as Annexure "C" pages 78-7....
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....got. In these circumstances, we do not think that a case has been made out for imposing penalty on him. (5) The appeal is accordingly allowed and the impugned order set aside to that extent." 11. It is pertinent to note that the Department allows this order of the Tribunal to gain finality. The Petitioner had applied for discharge earlier but his application was not considered and granted. He approached this Court and he was granted liberty to apply on the conclusion of the proceedings in adjudication. That adjudication proceedings concluded by the Tribunal's order dated 26th August, 2003 and pursuant to the liberty granted, a discharge application dated 7th October, 2003 was filed. The Magistrate concerned has rejected this application by his order dated 10th September, 2009 (impugned order). 12. From a perusal of the order passed by the Magistrate, it is apparent that he has relied upon the same facts and allegations as are incorporated in the show cause notice. He has concluded that there is sufficient evidence in the Adjudication proceedings against Respondent Nos. 2 and 3 at this stage. However, even if the prima facie material in Adjudication proceedings against the Applic....