TaxTMI 
TaxTMI 
2024 (2) TMI 663
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....cer and has set up a Private Limited Company under the name and style "Duomo Distribution Private Limited" (hereinafter referred to as "the said company") in the year 2017 under the relevant provisions of The Companies Act, 2013 for the purpose of importing new brands of foreign liquor from Europe in the Indian Market. The present petitioner was appointed as one of the directors of the said company since its inception in 2017. The said company is appointed as the sole importer and marketing company in India for globally renowned liquor brands owned by leading manufacturers of international repute namely one Polini Group Italia SRL, Italy (hereinafter referred to as "Polini"). 3. Copies of the Import Export Code issued by the Government of India, Ministry of Commerce and Industry, Department of Commerce dated 12.02.2018 and a license under the Food Safety and Standards Act, 2006 dated 08.03.2018 indicating the aforesaid factum of sole importer and marketing company for globally renowned liquor brands owned by leading manufacturers of Polini are annexed to the revisional application as Annexure "P-1". 4. The petitioner was appointed as an executive director of the said company ....
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....27.10.2018 clearly indicates that stickers bearing tag "NOT FOR SALE" which were supposed to be affixed on the bottles in question were ordered. However before the same could have affixed, the bottles were seized on 31.10.2018. 9. The petitioner's case is that as per Regulation 118 of Foreign Liquor Rules, any foreign liquor which is not meant for sale, is not required to be registered. 10. As per rule 149 and 196 of the said Rules, excise is applicable to products where MRP is mentioned, however, in this instant case none of the bottles had any MRP on it as it was not for sale. The fees for issuance of a pass and the excise duty that is payable on any commodity for consumption can only be calculated on the MRP (maximum retail price) of such foreign liquor (Appendix F and Appendix K of the said Rules), and in the absence of such retail price, there is no mechanism for the calculation of any duty. 11. The petitioner further states that the investigation in the instant case has been carried out in a biased manner, without proper administration of law and hence the report filed at the end of such investigation is bad in fact and in law. 12. The petitioner submits that it i....
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....t & wine were recovered was claimed to be the marketing office of a company as stated by Mr. Sahai. On demand Raj Sahai and Chhote Prasad failed to produce any valid document in support of such possession. The unlawful intoxicants was seized on the spot observing all required formalities. 16. The premises as noted is a house at AC-120, Prafulla Kanan, Krishnapur, P.S. Baguiati, Kolkata-700101, from which the seized articles being 292 bottles of non-duty paid Overseas Foreign Liquor was recovered and the accused/petitioner was arrested. 17. The petitioner's defense is that these were samples and as such no duty was payable. It is further submitted along with supporting documents that the exporter had also given the Declaration as to the said articles being samples. 18. It is also the case of the prosecution that the house/place of storage is not authorized/approved by the competent authority under the Bengal Excise Act, 1909 (as amended). 19. It appears from a copy of a Transport pass dated 11.09.2018, issued in favour of the petitioner's Company (Duomo Distribution Pvt. Ltd.) that the name & address of the Consignee is „Bevco Warehouse' at Kashipur, WBSCL warehous....
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....tion, if any, following directly or indirectly from the buyer to the assessee in connection with the sale of such goods, and such price-cum-duty, excluding sales tax and other taxes, if any, actually paid, shall be deemed to include the duty payable on such goods.]" 26. The petitioner herein has filed documents of the custom office to show valid import of the articles specifically marked "Samples Not for Sale". 27. Duty as required has been paid to the Custom Authorities. 28. The petitioner has now submitted that if required they are ready and willing to pay the duty as per the West Bengal Excise Act, 1909 (as amended). But the State submits that there being no such provision under the Amended Act, the petitioner is liable to be prosecuted. Section 65 of the Act provides for compounding of offences & release of confiscated property (other than Sections 46A, 46AA) under the Act. The petitioner has been charged under Section 46A of the Act. 29. From the materials on record, it appears that the petitioner and another accused Chhote Prasad have been made accused's in this case, but the Company, Duomo Distribution Pvt. Ltd. AC-120 Prafulla Kanan, Krishnapur Baguiati has not ....
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....One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted." 27. In terms of the ratio above, a company being a juristic person cannot be imprisoned, but it can be subjected to a fine, which in itself is a punishment. Every punishment has adverse consequences, and therefore, prosecution of the company is mandatory. The exception would possibly be when the company itself has ceased to exist or cannot be prosecuted due to a statutory bar. However, such exceptions are of no relevance in the present case. Thus, the present prosecution must fail for this reason as well. 30. At the same time, initiation of prosecution has adverse and harsh consequences for the persons named as accused. In Directorate of Revenue and Another v. Mohammed Nisar Holia, 2008 (2) SCC 370, this Court explicitly recognises the right to not to be disturbed without sufficient grounds as one of the underlying mandates of Article 21 of the Constitution. Thus, the requirement ....
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....mission and check subterfuges. However, legal meaning of the provision is not determined in abstract, but only when applied to the relevant facts of the case. Therefore, it is necessary that the discretion conferred on the authorities is applied fairly and judiciously avoiding specious, unanticipated or unreasonable results. The intent, objective and purpose of the enactment should guide the exercise of discretion, as the presumption is that the makers did not anticipate anomalous or unworkable consequences. The intention should not be to target and penalise an unintentional defaulter who is in essence law-abiding. 31. There are a number of decisions of this Court in which, with reference to the importance of the summoning order, it has been emphasised that the initiation of prosecution and summoning of an accused to stand trial has serious consequences. They extend from monetary loss to humiliation and disrepute in society, sacrifice of time and effort to prepare defence and anxiety of uncertain times. Criminal law should not be set into motion as a matter of course or without adequate and necessary investigation of facts on mere suspicion, or when the violation of law is....