TaxTMI 
TaxTMI 
2023 (9) TMI 1598
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....er from the said proceedings; (B) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to stay further proceedings in respect of the trial pending before Court of the learned Special Judge (CBI), Ahmedabad in CBI Special Case No.48 of 2010; (C) An ex-parte ad interim relief in terms of prayer (B) above may kindly be granted;" [2.0] The brief facts of the case are as under: [2.1] A regular case No.RC-6(A)/2005-GNR under Section 120-B read with Section 420 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1998 was registered at CBI, Gandhinagar Branch on 04.04.2005 on the basis of source information alleging therein that Shri Yogendra Garg, Joint Development Commissioner, Kandla Special Economic Zone, Kandla, Shri V.N. Jahagirdar, Deputy Commissioner of Customs, Kandla Special Economic Zone (KASEZ) and M/s. Baccarose Perfumes and Beauty Products Private Limited, KASEZ had entered into criminal conspiracy, during the period March, 2001 to August, 2004, to cause wrongful gain to themselves and corresponding wrongful loss to the Government. Tha....
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.... Exh.57 seeking discharge and requested the learned Special Judge to consider the case of the applicant as no any offence under Sections 420 and 120(B) of the IPC would be attracted against the present applicant. Present applicant is not in connivance with any of the government officials and applicant Company has not hatched any conspiracy. The alleged dispute is only qua interpretation of the Rules and there is error in the impugned order and there was debatable issue qua attracting provisions of (1) Standards of Weights and Measures Act, 1976; (2) Standards of Weights and Measures (Packaged Commodities) Rules, 1977; (3) Central Excise Act, 1944 and (4) The Customs Act, 1962. There is no dispute that the amount of duty or any shortfall has already been paid by the applicant Company and the department has accepted the same. In support of the same, learned Senior Counsel has drawn the attention of this Court to the rejoinder filed by respondent No.1 and argued that, it is an admitted fact that, as per the order of the Central Board of Excise and Customs, after the interpretation of circular dated 28.02.2002 and letter dated 04.01.2006 issued by SWM, wherein, it is held that the pack....
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....ficials of the Customs Department, present applicant Company has committed an offence and countervailing duty (CVD) on the assessable Invoice value instead of Maximum Retail Price. The Company has evaded more than 8 Crores of CVD and caused loss to the government exchequer. Prima facie material indicating commission of offence is available on record and at the time of framing of charge, Court should not weigh the evidence and merely it has to see that is there any sufficient material available against the accused to proceed or not. Even, after lodging of the complaint, with a view to get filed the closure report, the applicant approached the Commissioner of Customs and then differential amount of CVD being deposited but prior to that case was registered and only with a view to get rid off from the criminal proceedings, approached the appellate Authority by suppressing facts and hence, all these exercise on the part of accused Company are nothing but an afterthought which amounts to a defence and for that full-fledged trial is required. Hence, he has requested to dismiss the present application. [5.0] Heard learned Counsel appearing for the respective parties. [5.1] Under Section ....
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....eged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. (viii) If the evidence, which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross - examination or rebutted by the defence evidence, if any, 'cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial. (ix) It is open to the accused to explain away the materials giving rise to the grave suspicion. (x) There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused. [5.2] The above parameters which govern the exercise of jurisdiction have found....
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....ined to the Court, then in such a case the Court will be fully justified in framing the charge and proceed with the trial. On other hand, if the Judge is satisfied that the evidence produced before the Court gives rise to some suspicion but not grave suspicion then the Judge will be fully justified in discharging the accused. [6.0] In the complaint it was alleged that Shri Yogendra Garg, the then Joint Development Commissioner, Kandla Economic Zone, Gandhidham and Shri V.N. Jahagirdhar, the then Deputy Commissioner, Kandla Special Economic Zone (KASEZ), Gandhidham entered into criminal conspiracy during the period from March, 2001 to August, 2004 with present applicant namely M/s. Baccarose Perfumes and Beauty Products Pvt. Ltd. In pursuance of said criminal conspiracy M/s. Baccarose Perfumes and Beauty Products Pvt. Ltd. was allowed to remove the goods from KASEZ to Domestic Tariff Area on payment of the Counter Vailing Duty (CVD) on the assessable value declared in the invoice instead of Maximum Retail Price (MRP), which resulted in undue pecuniary advantage to the accused persons to the tune of Rs.8 Crores and corresponding loss to the Government. [6.1] Going through the compl....
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....carried out for the DTA clearance not only as per the provisions of law, but also from the practice that was being adopted at other Special Economic Zones. However, thereafter also, the accused - officers did not take any action against the accused - Company and allowed the Company to pay CVD on the invoice value instead of MRP of the products. It further appears that as per the intelligence collected by the Preventive Officers, there was a substantial difference between the invoice value and the MRP, and for certain products, the difference was upto 85%. It further appears that the said evasion of CVD payable of MRP of the products continued since March 2001 to July 2004 with the active connivance of the accused - officers, which caused loss of revenue to the extent of crores of rupees, and ultimately, in 2005, the accused - Company was assessed as per the MRP value of its products. It is pertinent to note that the differential amount had been paid by the accused - Company only when the Customs department carried out raid on the unit." [6.2] Thus, prima facie, it appears that the learned Special Judge come to the conclusion that though notifications issued by the Central Excise ....
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....nd untrue; 3. In an effort to mislead the department / government, the accused made false statements with malice and was an afterthought; 4. The act in which the accused Company persuaded the department to carry out or refrain from acting in a way that the officials from the department would not have done or would have otherwise committed; 5. There was a mens rea, which is a legal term that denotes a person's mental condition or state when committing a crime and is the motive behind every crime. It is a specific anticipated or pre-planned intention to conduct a specific act, herein which is wrongful gain to the applicant Company and caused loss to the government. Thus, one of the most important ingredients needed to establish the offence of cheating under Section 420 of the IPC is the making of a false representation. It is not enough to show that a false representation was made to establish a case under Section 420 of IPC for cheating but, it must be shown that the accused knew since inception the representation to be false and that it was made with the intent to deceive. [7.1] In view of above, it reveals from the record that since inception there was malafide and dis....
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....egal means; (iii) The agreement may be expressed or implied or partly expressed and partly implied; (iv) As soon as the agreement is made, the conspiracy arises, and the offence is committed and (v) the same offence is continued to be committed so long as the combination persists. [8.3] It is needless to say that so far as the allegation of conspiracy is concerned, it is very difficult to collect any direct evidence of conspiracy. From the material collected or the evidence adduced on record, inference of conspiracy is required to be drawn. The Investigating Officer has collected voluminous documentary evidences and evidence of the Intelligence Officers, the offence of evasion of CVD of 85% payable to the government on MRP of the products is noted. Merely because, subsequently in appeal the Customs Department has cleared the doubts and Company has subsequently paid the differential amount of CVD of Rs.1,51,45,378/- is not a ground to exonerate the applicant Company from the charges leveled against it as said proceedings are afterthought and amount paid after the raid conducted by the Customs Department. The said proceedings are initiated after closing of the present prosecution. N....
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....al is preferred subsequently in the year 2005 that too by suppressing the fact that the criminal prosecution is pending or complaint is filed before the Settlement Commissioner as per the mandatory provision of section 32-K of the Central Excise Act, 1944, which reads as under: "32K. Power of Settlement Commission to grant immunity from prosecution and penalty.- The Settlement Commission may, if it is satisfied that any person who made the application for settlement under section 32-E has co-operated with the Settlement Commission in the proceedings before it and has made a full and true disclosure of his duty liability, grant to such person, subject to such conditions as it may think fit to impose, immunity from prosecution for any offence under this Act [and also either wholly or in part from the imposition of any penalty and fine] under this Act, with respect to the case covered by the settlement: Provided that no such immunity shall be granted by the Settlement Commission in cases where the proceedings for the prosecution for any such offence have been instituted before the date of receipt of the application under section 32-E." In view of above, question of settlement o....