TaxTMI 
TaxTMI 
2014 (9) TMI 295
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.... and perused the lower court record. 3. Prosecution story, in brief, is that accused/appellant, Smti L.R. Mithran was posted as Commissioner of Central Excise, Shillong in the year 1996-1997. Office of the Directorate General Anti-Evasion, Kolkata detected a case of excise evasion against assessee, namely, M/s. Kitply Industries Ltd., 119, Park Street, Kolkata of which co-accused Shri. S.P. Goenka (since died) was the Chairman. In February, 1996, said assessee was served with a show cause notice alleging that it has evaded central excise duty amounting to Rs. 35,79,07,804/- (Rupees thirty five crores, seventy nine lakhs, seven thousand, eight hundred and four). Smti L.R. Mithran (accused/appellant) who was the then Commissioner of Central Excise, Shillong had to adjudicate the matter. She heard the matter in September, 1996 and finally adjudicated in December, 1996 vide her adjudication order dated 5-12-1996. Accused/appellant sliced down the central excise duty payable by the aforesaid assessee M/s. Kitply Industries Ltd from Rs. 35,79,07,804/- (Rupees thirty five crores, seventy nine lakhs, seven thousand, eight hundred and four) to Rs. 9,14,40,448/- (Rupees nine crores, ....
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....ti Lumlanglin Kharkongor, the then Incharge Registrar of Societies proved registration of Zami Memorial Charitable Trust. PW-3, Sukanta Das, the then Inspector Central Excise, Shillong, proved show cause notice Ext. 4, dated 28-2-1995 issued by the accused to the assessee. PW-4, Mohit Kumar Chakravarty, the then employee of District Transport Office, Shillong proved that the vehicle No. ML 05-D-2648 was registered in the name of Zami Memorial Charitable Trust. PW-5 Amal Kanti Das, the then Deputy Director in the office of Directorate General of Anti-Evasion, Kolkata stated that he made initial inquiries regarding alleged tax evasion by the assessee M/s. Kitply Industries Ltd. PW-6 Omprakash Prajapati was Accountant in the office of M/s. Kitply Industries Ltd., Guwahati who has proved slip pad Ext. 7 of M/s. Kitply Industries Ltd which pertains to P.I. Zami Memorial Charitable Trust. PW-7 Lalchangliani Sailo, the then Superintendent of Central Excise and Customs has stated that he worked as Financial Secretary of Zami Memorial Charitable Trust i.e. trust created in the name of mother of accused, Smti L.R. Mithran. PW-8 Swapan Kr Roy, the then Manager of Himatsingka Auto Enterprise, ....
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....as stated that under the instructions of M/s. Warren Tea Ltd he debited an amount of Rs. 5,00,000/- from its account for issuance of Demand Draft in favour of Zami Memorial Charitable Trust. PW-22 Shambu Nath Jajodia, the then Vice President Commercial of M/s. Kitply Industries Ltd gave evidence relating to issuance of appointment letter to Shri. Allen R. Mithran, son of accused, Smti L.R. Mithran. PW-23 P. Ramakrishna Rao, the then Manager of Vijaya Bank, Laitumkhrah Branch, Shillong corroborated the fact relating to deposit of Rs. 1,00,000/- in the account of the Trust. PW-24 Rikman Momin @ Ricky, a coal business man stated that he made arrangement for accommodation of Shri. AR Mithran, son of accussed, Smti L.R. Mithran after he was employed in coal business. PW-25 Anil Kumar, the then Director of M/s. Kitply Industries Ltd corroborated the fact that Vinay Kumar Goenka, Managing Director of Warren Tea Ltd is son of co-accused Shri S.P. Goenka who was Chairman of M/s. Kitply Industries Ltd. (Assessee). PW-26 Danjendra Kr. Thakuria has stated that he assisted in delivery of the vehicle donated to the Trust. PW-27 Pawan Kumar Goenka, son of co-accused, Shri S.P. Goenka has also cor....
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....Section 313 of CrPC has also admitted her signatures in the documents Ext 3/1 i.e. application for registration of the Trust as a Society, Ext 3/2 i.e. treasury challan for depositing a sum of Rs. 250/- (Rupees two fifty) for registration, and Ext 3/3 i.e. Memorandum of Association of Zami Memorial Charitable Trust (Society registered). Relating to the statement of PW-4 Mohit Kumar Chakravarty regarding registration certificate paper marked 6 with regard to the ambulance bearing registration No. ML05-D-2648 (donated to Zami Memorial Charitable Trust), she (accused/appellant) has admitted the documents of registration shows that said vehicle was registered in the name of Zami Memorial Charitable Trust. In reply to the evidence adduced by PW-7 Smti Lalchangliani Sailo that "ZAMI" is the name of mother of Smti L.R. Mithran in whose name Trust was created in October, 1996, She has admitted the evidence given by PW-7 as correct. She also stated in this connection that she was one of the trustees of the aforesaid Trust along with her son Shri. Allen R. Mithran. In reply to question No. 14 put by the trial Court relating to evidence given by PW-7 Lalchangliani Sailo told that Rs. 5,00,000....
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....ame vide order dated 15-6-1999 (Ext. A) [2000 (124) E.L.T. 596 (Tri. - Kol.)]. Operative portion of said order reads as under : (i) "Demand of duty of Rs. 7,05,95,368/- (rupees seven crores, five lakhs, ninety five thousand, three hundred and sixty eight) only is set aside. (ii) Demand of duty of Rs. 48,48,500/- (Rupees forty eight lakhs, forty eight thousand, five hundred) only is set aside. (iii) Demand of duty of Rs. 58,96,580/- (Rupees fifty eight lakhs, ninety six thousand, five hundred and eighty) only is confirmed. (iv) Penalty on M/s. Kitply Industries Ltd. is reduced to Rs. 10,00,000.00 (Rupees ten lakhs) only. (v) Penalty of Rs. 1,00,000/- (Rupees one lakh) only imposed to Shri P.K. Goenka is set aside". 10. Referring to above order, it is argued that not only the duty reduced by the accused/appellant as Commissioner Central Excise, was affirmed but penalty imposed by her against the assessee and its Managing Director was reduced. It is also pointed out that when said orders were challenged by the Revenue (Commissioner Central Excise) be....
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....;Mr. K. Paul, learned counsel for the appellant submitted that had the accused/appellant been in collusion with the assessee, she would not have imposed penalty of Rs. 1,00,000/- on Shri PK Goenka, the Managing Director of M/s. Kitply Industries Ltd. (assessee). Attention of this Court is also drawn to the fact that penalty of Rs. 1,00,00,000/- imposed by the accused/appellant against the assessee, M/s. Kitply Industries Ltd. was reduced to Rs. 10,00,000/- by the CEGAT. It is also submitted that the donations allegedly made to Zami Memorial Charitable Trust were exempted under Section 80G of the Income Tax Act which was claimed by the assessee, as such the transaction was bona fide. 14. However, sub-section (1) of Section 20 of Prevention of Corruption Act, 1988 reads as under : "20. Presumption where public servant accepts gratification other than legal remuneration. - (1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratif....
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....ion of Rs. 5,00,000/- was made to Zami Memorial Charitable Trust, the case had already been adjudicated by accussed/appellant, Smti L.R. Mithran. I have carefully gone through the above case and do not find that the same is of any help to the present accused/appellant in view of the presumption required to be drawn under Section 20 of Prevention of Corruption Act, 1988. 17. Another case relied on behalf of the appellant is R. Balakrishna Pillai v. State of Kerela - (2003) 9 SCC page 700 in which the Apex Court has held in paragraph 43 that the accused must have the mental state or degree of fault at the relevant time. It is also observed in said para that mere intention is not punishable except when it is accompanied by an act or conduct of commission or omission on the part of the accused. Having carefully gone through said case law, this Court is of the view that in the present case from the evidence on record, merely for the reason that the case had been decided on 5-12-1996 by the accused, and the donation was accepted thereafter in the name of Charitable Trust, (in the same month) it cannot be said that there is no conduct of commission or omission on the part of the a....