IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5212/2012 BETWEEN:
1. M/S KAVVERI TELECOM PRODUCTS LIMITED PLOT NO.31-36, AREKERE MICO LAYOUT BANNERGHATTA ROAD BENGALURU-560068 REP BY ITS MANAGING DIRECTOR SRI SHIVAKUMAR REDDY 2. SRI SHIVAKUMAR REDDY MANAGING DIRECTOR M/S KAVVERI TELECOM PRODUCTS LIMITED PLOT NO. 31-36, AREKERE MICO LAYOUT BANNERGHATTA ROAD BENGALURU-560068.
(BY SRI RAGHAVENDRA K, ADVOCATE) AND:
ADDITIONAL COMMISSIONER OF CENTRAL EXCISE (LEGAL) BENGALURU OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE C R BUILDINGS, QUEEN’S ROAD P B NO. 5400 BENGALURU-560001 (BY SRI. JEEVAN J NEERALGI, CGSC.) …PETITIONERS ...RESPONDENT THIS PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 09.11.2011 PASSED IN C.C.NO.332/2011, DIRECTING REGISTRATION OF A CASE AGAINST THE PETITIONERS FOR OFFENCES WHICH ARE MADE PENAL U/S 9 AND 9AA OF CENTRAL EXCISE ACT AND ORDERING PROCESS AGAINST THEM FOR THEIR APPEARANCE IN THE CASE BEFORE THE SPECIAL COURT (ECONOMIC OFFENCES), BENGALURU AND FURTHER BE PLEASED TO QUASH THE PROCEEDINGS THAT ARE BEING RECORDED IN THE CASE.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners have sought to set aside the order dated 09.11.2011 passed by the Special Court for Economic Offences, Bengaluru, in C.C.No.332/2011 whereby the learned Magistrate has taken cognizance of the offence punishable under Sections 9 and 9AA of the Central Excise Act, 1944 (for short ‘the Act’) and has issued summons to the petitioners.
2. Learned counsel for the petitioners would primarily contend that as against the adjudication order passed by the Commissioner of Central Excise, the petitioners have preferred an appeal under Section 35A of the Act before the Customs, Excise and Service Tax Appellate Tribunal, Bengaluru, in Appeal No.E/2098/2010, 1708-1710/2010 and by order dated 13.02.2012, the impugned recovery has been stayed by the Appellate Tribunal and hence, the prosecution initiated against the petitioners cannot be continued.
3. The learned counsel appearing for the respondent does not dispute the above factual submission.
4. Having regard to the fact that the recovery proceedings are seized of by the Appellate Tribunal, it is necessary that the criminal prosecution against the petitioners are initiated depending upon the decision of the Appellate Tribunal.
5. Accordingly, the petition is allowed. The impugned order dated 09.11.2011 in C.C.No.332/2011 is set aside. The proceedings initiated against the petitioners in C.C.No.332/2011 are quashed for the present reserving liberty to the respondent to initiate appropriate action depending upon the result of the proceedings pending before the Customs, Excise and Service Tax Appellate Tribunal, Bengaluru, in Appeal No.E/2098/2010, 1708-1710/2010.
Petition is disposed of accordingly.
SD/- JUDGE VP