IMPORTANT POINT
When same cause of action give rise to civil and criminal proceedings, both can be initiated simultaneously.

ORDER

U. Durga Prasad Rao, J.—This petition is filed under Section 482 Cr.P.C by the petitioner/A4 seeking to quash the proceedings against him in C.C.No.29 of 2006 on the file of Special Judge for CBI cases, Visakhapatnam.

2. The Inspector of Police, CBI, SPE, Visakhapatnam filed charge sheet against A1 to A5 for the offences under Sections 120B, 420, 468, 471 IPC and under Section 13(2) r/w 13(1)(d)(ii) of Prevention of Corruption Act, 1988.

(a) A1 to A3 are the officials of Customs Department. A4Anil Kumar Aggarwal is the Managing Director and A5 is the Director of M/s.Kumars Cotex Limited (M/s.KCL). A4 and A5 were engaged in manufacture and clearance of cotton yarn and cotton waste having their factory at Dokiparu in Guntur District.

(b) A4Company imported six numbers of autoconers (capital goods) during the year 1996 valuing Rs.5,91,84,990/- availing 100% Customs Duty Waiver facility as per Notification No.13/81-Customs. While so, on 05.02.2002 it made an application to the Development Commissioner, Visakhapatnam Export Processing Zone, Visakhapatnam seeking permission to destroy two autoconers out of six, stating that the said two autoconers were burnt due to short circuit and not serviceable. Accordingly, on 27.02.2002 the Development Commissioner accorded permission for disposal of two autoconers subject to observance of customs formalities. Then, A4 requested the Deputy Commissioner, Central Excise, Guntur to pass orders for destruction, who in turn passed orders on 24.07.2002 permitting the petitioner/A4 to destruct two autoconers in the presence of Central Excise Officials.

(c) When the matter stood thus, A1 to A3Excise Officials entered into criminal conspiracy with A4 and in pursuance of the same they went to the premises of A4Company on 25.07.2002 to supervise the destruction of two autoconers, but did not ensure destruction. A1 by abusing his position as a public servant sent compliance report to Deputy Commissioner as if two autoconers were destroyed by breaking into pieces in their presence; the scrap was transported through lorry bearing No.AP7T 1436 and sold the same to M. Venkateswar Raoscrap dealer for Rs.1,90,000/- and a sum of Rs.30,400/- was deposited in the bank towards Central Excise Duty. However, the investigation revealed, on 09.10.2003, A4 sold the said two autoconers to M/s. Sri Jayalakshimi spinning Mills limited, Chebrolu (M/s. SJSML) for of Rs.50 lakhs. In fact, the said two autoconers were found in working condition at M/s. SJSML by Superintendent, Preventive, Central Excise, Guntur by evading tax hence they were seized. Therefore, the Central Excise Department issued show cause notice to petitioner/A4 demanding customs duty of Rs.52.61 lakhs. Accordingly charge sheet was filed.

Hence, the instant Criminal Petition for quashment.

3. Heard learned counsel for petitioner and learned Special Public Prosecutor for CBI.

4. Learned counsel for petitioner would challenge the proceedings in C.C.No.29 of 2006 on the main plank of argument that against the order passed by the Commissioner of Customs and Central Excise, Guntur petitioners Company preferred an appealC/270-272/2007 before the Customs Excise and Service Tax Appellate Tribunal (CESTAT), Bangalore and final order was passed in order Nos. 445-447/2012 allowing the appeal in favour of petitioner on 13.06.2012 holding that machinery was dismantled under the supervision of the Central Excise Officers and cleared from the factory as scrap. As such, it should be considered as Domestic Tariff Area (DTA) clearance by the Export Oriented Unit (EOU) attracting Central Excise duty. It was not a clearance of the capital goods from the factory. Therefore, payment of Central Excise duty by the assessee at the time of clearance of the scrap to M/s.SJSML cannot be faulted. Added to it, there is no valid case to hold that there was suppression or wilful misstatement of facts, let alone fraud, with intent to evade payment of duty has been made out against