TaxTMI 
TaxTMI 
2021 (5) TMI 932
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....rested on the same day, produced before the Additional Civil Judicial Magistrate and remanded to judicial custody. 4. The adjudicating authority, vide order dated 14th August 2003, confiscated the gold/diamond jewellery worth Rs. 85.52 lakhs. With respect to the remaining jewellery, she was allowed to redeem the same at Rs. 3 lakhs, upon paying a penalty of a sum of Rs. 15 lakhs. 5. After the lodging of the FIR, and the charges having been framed, in the trial, the Respondent was initially convicted by the ld. ACMM for offences under the Customs Act, 1962. However, thereafter, she was acquitted on 11th April, 2007 by the ld. Sessions Judge. 6. Parallelly to the said adjudication, a show-cause notice which was issued to the Plaintiff by the then Assistant Director, Directorate of Revenue Intelligence, on 12th December 2002, was also challenged by the Plaintiff. This challenge was allowed by this court on 13th September 2006, and the said show cause notice was quashed. This decision of the Delhi High Court, was challenged before the Supreme Court in Civil Appeal No. 4403 of 2010. 7. Thus, there were two parallel proceedings which were going on - one for alleged offences under Sec....
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....time, vide judgment dated 18th August 2017, the Supreme Court upheld the High Court order quashing the show-cause notice against the Plaintiff, however, the Supreme Court expunged the strictures issued against the Department and its officials. 12. In the suit, the issue of limitation has now been adjudicated by the Trial Court and vide the impugned judgment dated 10th September 2018, the issue of limitation has been decided against the Defendants and in favour of the Plaintiff in the suit. The observations of the Trial Court, in the impugned judgment, are as under: "Now in the give facts and circumstances obviously a notice u/s 155(2) of the Act has been given before filing of the suit. Suit has been filed thereafter. The construction agitated/being given that the suit has not been filed within a period of three months from the date of the accrual of cause of action is only to be adopted in my humble opinion when no notice is given. Otherwise, the word "or" would be read as/ become "and" which was never the intention of the legislature. That being the scenario, the arguments advanced by DRI are not tenable. ...... Now the word the "prosecution is otherwise terminated" as per....
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....m day of the acquittal order being rendered. He says that even a one-day delay in the filing of the suit would render the suit time barred under the provisions of The Limitation Act, 1963. Submissions on behalf of the Respondent 16. On the other hand, Ms. Banerjee, ld. counsel appearing for the Plaintiff/ Respondent supports the view taken by the Trial Court. It is her submission that the manner in which Section 155(2) of the Customs Act, 1962, is being read by the Defendants/ Petitioners is incorrect. 17. She submits that for the purpose of the filing of a suit, the period prescribed under Section 155(2) of the Act, has no application. In her submission, the said period of one month for a notice, and three months for the filing of a suit, only applies in the case of "other proceedings" and not in the case of a civil suit. In support of this submission, she relies upon the Madras High Court Judgment in Crl. R.C. (MD) Nos. 494, 495 of 2018 titled Assistant Commissioner of Customs (Prosecution) v. Job Jacob. 18. She further submits that in order for 155(2) of the Act to be satisfied, the Department has to prove that the Act was done in good faith, which would require evidence. S....
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....s suit has two dimensions - i. The first-dimension concerns the interpretation and the applicability of Section 155(2) of the Customs Act to suits and ii. Secondly, whether the suit is to be held to be within limitation under Section 3 along with Section 12, r/w Entry 74 of the Schedule of the Limitation Act, 1963 and whether the suit was filed within the one-year period, provided therein, or not. 25. The first dimension to be considered is the interpretation of Section 155(2) of the Customs Act, 1962. For ready reference, Section 155 is set out below: "155. Protection of action taken under the Act - (1) No suit, prosecution or other legal proceedings 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 pursuance of this Act or the rules or regulations (2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act without giving the Central Government or such officer a month's previous notice in writing of the intended proc....
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....iled within three months from the date of accrual of cause of action; iv) That for filing of a suit, one month's notice from the date of cause of action is to be given and the suit is to be filed within the period of limitation under the Limitation Act; v) That in the absence of a notice of one month, the suit is to be filed within three months from date of accrual of cause of action; vi) Section 155(2) does not apply to suits and is only applicable to other proceedings. vii) In respect of other proceedings, the procedure would be, to give one month's notice from the date of accrual of cause and file the proceedings within three months from the date of accrual of cause; viii) In respect of other proceedings, the procedure in the absence of one month's notice would be, to file within a period of three months from the date of accrual of a cause; Since, such varying interpretations of this provision are possible, in order to arrive at the correct conclusion, it is useful to consider a provision in the Sea Customs Act of 1878, which had a similar provision. 28. Section 198 of the Sea Customs Act, 1878, reads as under: "Notice of Proceedings. 198. No proceeding other than a....
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....is Act or the Rules or regulations. 12. Whereas the specific allegation against the respondents is that they have done certain act which is contrary to the Customs Act and the Rules framed there under. It is also specifically alleged against them that the act done by these accused persons are not done with dishonest intention. Thus, the scope of differing good faith gets excluded. 13. In the said circumstances, the protection given under the Act which is available to Servants of either Government/local authority who have done any act in good faith and in pursuance to the provision of Customs, Act is not applicable to the respondents. 14. The second limb of the provision is regarding proceeding other than the suit. The act bars commencement of action without affording one month previous notice in writing or after expire of three months from the date of cause. This protection is not in respect of the suit, since the provision started with "no proceeding other than a suit"." The Madras High Court in the judgment above has thus held that Section 155(2) of the Customs Act applies to proceedings other than suits. 32. In Atul Dikshit v. CBI (Crl. M.C. 4143/2016, decided on 23rd Ja....
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..... Section 155(2) of the Customs Act does not prescribe any limitation for initiation of any criminal prosecution. The word 'prosecution' is conspicuously missing in Section 155(2) of the Customs Act. By no stretch of imagination, it can be inferred that limitation as prescribed under Section 155(2) CrPC. would be applicable to the criminal proceedings/prosecution." 33. In the above-mentioned judgment of Atul Dikshit (supra), the Court has taken the view that criminal proceedings would not be barred, under section 155(2) of the Customs Act, as also the amended Section 40 of the Central Excise Act, as the word prosecution is conspicuously missing in the said provisions. However, this Court is currently not considering the question as to whether any criminal prosecution is maintainable or not. 34. Even the Kerala High Court in C.C. Baby and Ors v. Central Bureau of Investigation, Anticorruption Bureau (ACB) and Ors. (2020 (3) KHC 499) has, while dealing with Section 155(2) of the Customs Act, 1962, held: "33. Sub section (1) of section 155 of the Customs Act provides a complete bar of any suit or other legal proceedings, if the act under challenge was done or intended to b....
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....p as a defence. (2) For the purposes of this Act,- (a) a suit is instituted,- (i) in an ordinary case, when the plaint is presented to the proper officer; ....." xxx Section 12. Exclusion of time in legal proceedings- (1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. (2)..... (4) Explanation - In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded." xxx THE SCHEDULE (PERIODS OF LIMITATION) [See sections 2(j) and 3] FIRST DIVISION-SUITS Description of suit Period of Limitation Time from which period begins to run 74. For compensation for a malicious prosecution xxx" One year When the plaintiff is acquitted or the prosecution is otherwise terminated 38. A perusal of the provisions of The Limitation Act, 1963, extracted above, shows that the period of limitation for filing of a suit for malicious prosecution is one year, from the date when the Plaintiff is acqu....