Delhi High Court
M/S Vishnu & Co Pvt Ltd & Anr. vs Superintendent Central Excise on 18 August, 2015
Author: Sunil Gaur
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 18, 2015
+ CRL.M.C. 3317/2015 & Crl.M.As.11834-35/2015
M/S VISHNU & CO PVT LTD & ANR ..... Petitioners
Through: Dr. Seema Jain, Mr. Ajay Kumar
Jain and Mr Dushyant K. Mahant,
Advocates
versus
SUPERINTENDENT CENTRAL EXCISE ..... Respondent
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Quashing of FIR No.79/1/2007 under Sections 9/9AA of the
Central Excise Act, 1944 titled Sandeep Jain v. M/s. Vishnu and Co. Pvt.
Ltd. & Anr. is sought in this petition on the ground that the demand of
duty has been set aside by the Custom Excise and Service Tax Appellate
Tribunal (CESTAT) and so, the continuance of proceedings arising out of
the complaint in question is an exercise in futility.
Learned counsel for petitioners submits that petitioners have
appeared before the trial court and pre-charge evidence is in progress and
the next date of hearing is 2nd December, 2015. It is also stated that the
order setting aside the demand for duty is sub judice before a Division
Bench of this Court. Reliance was placed by learned counsel for
CRL.M.C. 3317/2015 Page 1
petitioners upon decisions in Biharaj MFG. Co. P. Ltd. v. Commissioner
of Central Excise 2007 (94) DRJ 705, Anil Mahajan & Anr. v. Union of
India &b Anr. 2008 (101) DRJ 473 and Radheyshyam Kejriwal v. State of
West Bengal and Anr. [2011] 4 S.C.R. 889.
Since petitioners have an alternate and efficacious remedy to seek
discharge from trial court by urging the pleas taken herein, therefore, this
Court is not inclined to exercise its inherent jurisdiction under Section
482 of Cr.P.C.
Such a course is being adopted in view of dictum of Apex Court in
Padal Venkata Rama Reddy Alias Ramu v. Kovvuri Satyanarayana Reddy
& Ors. (2011) 12 SCC 437, which is as under: -
"It is well settled that the inherent powers under
Section 482 can be exercised only when no other remedy is
available to the litigant and not in a situation where a
specific remedy is provided by the statute. It cannot be used
if it is inconsistent with specific provisions provided under
the Code (vide Kavita v. State and B.S.Joshi v. State of
Haryana). If an effective alternative remedy is available, the
High Court will not exercise its powers under this section,
specifically when the applicant may not have availed of that
remedy."
Applying the dictum of the Apex Court in Padal Venkata Rama
Reddy (supra) as referred to hereinabove, this petition is disposed of with
liberty to petitioners to urge the pleas taken herein before the trial court at
the stage of hearing on the point of charge and if it is so done, then trial
court shall deal with the pleas raised herein by passing a speaking and
reasoned order.
If the trial court finds that no case is made out against petitioners,
CRL.M.C. 3317/2015 Page 2
then this order will not stand in the way of trial court to discharge
petitioners. Needless to say, if trial court chooses to frame charges against
petitioners, then petitioners shall be at liberty to avail of the remedy as
available in law, if so advised. It is made clear that this Court has not
considered the merits of this case and it is left open for the trial court to
do so after considering the pleas raised in this petition and decisions
relied upon by petitioners.
This petition and the applications are accordingly disposed of while
refraining to comment upon merits, lest it may prejudice petitioners
before trial court.
(SUNIL GAUR)
JUDGE
AUGUST 18, 2015
s
CRL.M.C. 3317/2015 Page 3
