TaxTMI 
TaxTMI 
TaxTMI 
2010 (1) TMI 31
X X X X Extracts X X X X
X X X X Extracts X X X X
....ection 132/135(1)(a) of the Customs Act seeks quashing of the order dated 02.09.1998, taking cognizance on the aforesaid complaint against him on the ground, that the said complaint is not only barred by time but is also not maintainable qua him as there is no evidence admissible in law which may result in his conviction. It is, thus, prayed that proceedings in that case against the petitioner be quashed by exercising powers of this Court under Section 482 of the Cr.P.C. as the trial of the petitioner in that case without there being any evidence against him would tantamount to abuse of the process of the Court 2. Briefly stating, the facts giving rise to the filing of this petition are: i. Accused no.1 Shri Adarsh Bhushan Mitra who is t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ORTER NOR THE IMPORTER and as such the complaint filed against the petitioner is an abuse of process of law and the same is liable to be quashed. ii. Because, the petitioner has not assisted and/or contributed financially for the procurement of public address system or the jackets so as to create any interest for himself in the export deal of the accused no.1. iii. Because, the allegations made against the petitioner not sustainable in the eyes of law as the petitioner had simply suggested the name of CHA agent, source of procurement of jackets and delivery of some documents to the CHA and therefore no guilt/offence can be attributed to the petitioner. As such the process issued against the petitioner is a result of non-application of mi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat such declaration, document or statement is false in any material particular. It is the case of the prosecution agency that the petitioner never signed any documents pertaining to the export business and even the statement of Accused No. 1, recorded by the customs official under Section 108 of the Customs Act reveals that it was only accused no. 1 who made, prepared and signed and further gave instruction relating to the said documents to various persons meant for his export business. Thus looking from any angle there is no material against the petitioner, the criminal proceedings initiated against him are liable to be quashed. vii. Because, the violation as contemplated under Section 18 (1)(a) of the FERA is only applicable to the exp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the accused no. 1. It is the case of the prosecution by their own admission that the products were indigenous and the same were procured from Bhagirath Palace, Delhi, Roorkee (Uttaranchal) and Kolkata. Thus, there was/is no scope to violate or misuse the DEPB Scheme and any wrong belief of the accused no. 1 regarding the same can never be the basis of any crime and/or conviction as the same could not have been availed of by the accused no. 1 and in no case by the accused no.2. Therefore, the entire case of prosecution against accused no.2 is not made out and the said proceedings are liable to be quashed at once. x. Because, the sanction by the Commissioner of Customs for prosecution is invalid and void ab-initio as it is a result of n....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... reason to believe are liable to confiscation under section 113; or (d) fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods, he shall be punishable,--………….." 6. In view of the aforesaid provision, the petitioner not being an exporter and there being nothing on record to suggest that he was involved in the export concerned; no case is made out against him under Section 135 of the Customs Act. 7. Section 132 of the Customs Act reads as under: Section 132 - False declaration, false documents, etc Whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business r....