VINAY RAI Vs. STATE

JUDGEMENT

(1.) The petitioner, who is arraigned as accused No.5 in the complaint filed by the Assistant Controller of Customs (respondent No.2 herein) under Sections 132 and 135 (1) (A) of the Customs Act, 1962 (hereinafter referred to as "the Act") and under Section 5 of the Imports and Exports (Control) Act, 1947, is seeking dismissal of the said complaint and his discharge.

(2.) It is alleged in the complaint filed by the complainant that the accused company M/s. Allen Woodroffe and Co. (I) Pvt. Ltd. has been importing components and raw materials, namely, LSICs, ICs connectors, disc drives CBT etc. for manufacturing of computers and computer peripheral devices at Air Cargo Unit, New Delhi claiming concessional rate of duties under various notifications issued from time to time under Customs Tariff Act, particularly 67/85 and 279/84. The importers are required to obtain certificates from the Government agencies such as Department of Electronics and other departments which indicate the details of items to be imported and numbers/quantity thereof. It is alleged that in the year 1985-86, the accused company extrapolated/manipulated number of items to be imported as well as added items which did not qualify for concessions and/or had not been allowed by the Department of Electronics. It has also been alleged in the complaint that the invoices have undervalued the price of items and in support of the complaint, the respondent No.2 relied upon certain documents such as original Department of Electronics certificates dated 24.4.1985 and the statement of the petitioner under Section 108 of the Act, etc.

(3.) Summoning orders dated 19.8.1991 were issued in this complaint and the petitioner had earlier filed Crl.M.M. No. 2404/1991 challenging those summoning orders. This petition was, however, dismissed on 14.5.2001. After the dismissal of this petition, the learned ACMM issued fresh summons on 5.10.2001. The petitioner again challenged the same by filing Crl.M.M. No. 3985/2001. This was, however, dismissed as withdrawn on 7.11.2001 when learned counsel for the petitioner stated that the petitioner would raise all the grounds available to him before the learned ACMM. Thereafter, the petitioner moved application for his discharge before the learned ACMM. It was stated in this application that apart from filing this complaint, the complainant had also initiated adjudication proceedings under Section 112 of the Act and vide order dated 6.11.1987 goods were confiscated and penalty was imposed upon the accused company. The company filed appeal against the said adjudication order before the Appellate Tribunal and vide order dated 7.1.1997 the appeal was allowed and the adjudication order set aside. It was, therefore, submitted that since the adjudication order was set aside, the complaint should be dismissed. This application is dismissed by the learned ACMM vide order dated 24.4.2004, inter alia, holding that the adjudication proceedings and the criminal proceedings are different and merely because the adjudication proceedings are decided in favour of the petitioner, it would not automatically follow that the criminal complaint is to be dismissed. The learned ACMM has referred to the judgments of the Supreme Court in the case of Asst. Collector of Customs v. L.R. Malwani, 1999 (110) ELT 317 (SC); and that of the Andhra Pradesh High Court in K. Neelakantha Rao v. State of Andhra Pradesh, 2000 (122) ELT 7, and quoting from these two judgments he observed as under :-