TaxTMI 
TaxTMI 
2015 (4) TMI 1152
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....or respondent No.1 - State of Gujarat. 3. Learned Senior Counsel for the petitioner submitted that the FIR being RC20( A)/2008 - GNR came to be registered before Gandhinagar CBI, ACB for the offences punishable under Sections 120B, 420, 467, 468, 471 and 511 of Indian Penal Code and under Section 15 of the Prevention of Corruption Act, 1988. The said FIR came to be filed against one B.C.Macwana, the then Assistant Commissioner, Central Excise, Rajkot, M/s. Welspun Gujarat Stahl Rohren Limited and against unknown person. In the said FIR, mainly it has been alleged that an information has been received from reliable source that Shri B.C.Macwana, the then Assistant Commissioner, Central Excise, Rajkot, during the period 20052006, entered into criminal conspiracy with M/s. Welspun Gujarat Stahl Rohren Limited, Varasamadi, Taluka Anjar, District Kutch (hereinafter referred to as 'the company' for short) for causing pecuniary advantage to themselves by cheating, by preparation of false documents, using them as genuine and by abuse of their official position. It is stated in the said FIR that after the earthquake of 26th January 2001, the Government declared various plan for rehabilita....
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....issioner of Central Excise ordered for investigation in the matter. The concerned officer carried out the investigation and during the course of the inquiry it was revealed that the company had fabricated its record in respect of the production and supply of the goods. The unit was visited by Directorate General of Central Excise Intelligence, Ahmedabad officers on 01.07.2006 and it was found that even on that day only a small part of the factory was constructed till then. The condition of the so called installed plant and machinery was not sufficient to commence production even on 01.07.2006. Thus, it is alleged that the accused have committed the alleged offence. 4. The Investigating Officer carried out the investigation and thereafter filed the chargesheet against the concerned accused including the petitioner. Petitioner, thereafter, filed discharge application before the learned trial Court. However, the learned trial Court has rejected the application for discharge filed by the petitioner by an order dated 26.06.2012. Petitioner has, thereafter, preferred this petition under Article 226 of the Constitution of India and under Section 482 of the Code for quashing and setting....
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....gainst the company and its officers with regard to the similar set of allegations made in the impugned FIR. The Central Excise Department compounded the offence. Thus, the allegations made in the proceedings initiated under the Central Excise Act have come to an end and therefore the impugned FIR, which is filed for the same set of allegations cannot be permitted to be proceeded further in the eye of law and therefore the same may be quashed and set aside. Learned counsel referred to page 114 of the compilation i.e. the order dated 19.09.2008 passed by the Chief Commissioner, Central Excise and submitted that the allegations made in the proceedings under the Central Excise Act and the allegations made in the FIR as well as the chargesheet by the CBI are one and the same. Thus, when for the same allegations, the offence is compounded by the Excise Authorities by imposing the penalty, for the same allegations, petitioner cannot be prosecuted under the provisions of IPC. Learned Senior Counsel, therefore, submitted that there cannot be two different prosecutions for one solitary incident and petitioner cannot be prosecuted twice for the same offence even in different proceedings and h....
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....ection 420 and 120B of the IPC. The Hon'ble Supreme Court held that Gujarat Cancer Society is immune from any criminal proceedings pursuant to the certificate issued under the said Scheme and the appellants are being prosecuted in their capacity as officebearers of the Gujarat Cancer Society. As the customs duty has already been paid, the Central Government has not suffered any financial loss. The Hon'ble Supreme Court has further held that as per the Scheme, whoever is granted the benefit under the said Scheme is granted immunity from prosecution from any offence under the Customs Act including the offence of evasion of duty and therefore the complaint filed against the said appellants is unsustainable. Thus, the learned Senior Counsel submitted that in the present case also once the offence is compounded under the provisions of the Central Excise Act, the petitioner herein is granted immunity from the prosecution and therefore the impugned FIR and the chargesheet be quashed and set aside qua the petitioner. 12. Learned Senior Counsel further relied on the decision rendered by the Hon'ble Supreme Court in the case of M/s. GHCL Employees Stock Option Trust v. M/s. India Infoline....
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....he Company wherein a decision was taken to apply for getting excise benefit as per the notification dated 31.07.2001 and therefore an application was made on 24.12.2005. The petitioner was one of the members of the Board Meeting. Learned advocate Shri Kodekar further submitted that one of the conditions of the aforesaid notification was that the commercial production should have started not later than 31.12.2005. One of the officers Shri S.P.Gawade, Assistant Commissioner visited the site of the company and submitted his report, wherein, he has specifically stated that unit was still not constructed and installation and erection of the machinery was not found in order as foundation was not yet completed. Thus, a committee, presided over by Shri B.C.Makwana, Assistant Commissioner had visited the site of the company. Shri B.C.Makwana had carried out the verification and submitted a report wherein he has willfully concealed the fact that the unit had not commenced the commercial production in order to cause undue peculiar advantage to the unit for availing the refund of the duty. The Chief Commissioner of Central Excise, therefore, ordered for investigation in the matter. The offi....
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....uments canvassed on behalf of the learned advocates appearing for the parties. I have also gone through the documents produced on record. In the present case, the FIR came to be registered against one B.C.Macwana, the then Assistant Commissioner, Central Excise, Rajkot, M/s. Welspun Gujarat Stahl Rohren Limited and against unknown person for the offences punishable under Sections 120B, 420, 467, 468, 471 and 511 of Indian Penal Code and under Section 15 of the Prevention of Corruption Act, 1988. After the investigation, a chargesheet came to be filed against the officers of the aforesaid company including the present petitioner. From the record, it appears that the petitioner is the Managing Director of the company. The company passed a resolution in its Board Meeting and decided to apply for getting excise benefit as per Notification dated 31.07.2001 and therefore the company submitted an application on 24.12.2005. However, from the record, it appears that before the registration of the FIR, an application seeking withdrawal of the benefit, which was sought under Notification dated 31.07.2001, was submitted by the company and therefore the company has not received any wrongful gai....
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....preme Court, in para 29 and 30, observed as under: 29. In our view, in the present case, the alleged criminal liability stands compounded on a settlement with respect to the civil issues and, therefore, the First Information Report was erroneously issued and was totally unwarranted. From the aforesaid judgment, the proposition that follows in the instant case is that the Kar Vivad Samadhan Scheme, 1998 issued by the Government of India was a voluntary Scheme whereby if the disputed demand is settled by the Authority and pending proceedings are withdrawn by an importer, the balance demand against an importer shall be dropped and the importer shall be immuned from penal proceedings under any law in force. We are, therefore, of the opinion that this judgment squarely comes in the face of any argument sought to be propounded by the respondent that the Kar Vivad Samadhan Scheme, 1998 does not absolve the appellants from criminal liability under the Indian Penal Code. The learned single Judge of the High Court of Delhi, in our opinion, has not appreciated the fact that the continuance of the proceedings in the instant case would only tantamount to driving the present appellants ....
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....of any Notification issued under the said Act. 20. In view of the aforesaid decisions, the learned Senior Counsel is right in submitting that in the present case once the offence is compounded under the provisions of the Central Excise Act and thereby the petitioner herein is granted immunity from the prosecution, the impugned FIR and the chargesheet be quashed and set aside qua the petitioner. 21. In case of G.N.Verma (Supra), the Hon'ble Supreme Court, in para 18, 19, 20 and 25, observed as under: "18. It is nobody's case that G.N. Verma was appointed as an agent of any mine. Also, the complaint does not allege or state anywhere that G.N. Verma acted or purported to act on behalf of the owner of the mine or that he took part in the management, control, supervision or direction of any mine. In fact his duties and responsibilities have not been described in the complaint. In the absence of G.N. Verma's duties having been spelt out in the complaint, it is not possible to say whether he was merely an administrative head of Karkata Colliery being its Chief General Manager or was he required to be involved in technical issues relating to the management, control, supe....
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....eet Singh Paintal (though in another context) would be squarely applicable. Under the circumstances, we are of the opinion that on the facts of this case and given the absence of any allegation in the complaint filed against him no case for proceeding against G.N. Verma has been made out. xxxxx 25. On the facts of this case, we would need to unreasonably stretch the law to include G.N. Verma as a person vicariously responsible for the lapse that occurred in the mine resulting in a fatal accident. We are of the view that under these circumstances, there is no basis for proceeding under Section 72B of the Act against G.N. Verma." 22. In above view of the matter, I am in agreement with the argument canvassed by the learned Senior Counsel Shri Thakkar for the petitioner that since there is no specific allegation in the FIR or in the chargesheet against the petitioner and merely because the petitioner was the Managing Director of the company, he has been implicated in the offence, the petitioner cannot be made vicariously liable for the act and/or omission on the part of the company for the offence punishable under the provisions of the IPC. 23. The contention of....