CBEC vide earlier Circular no. 30/30/94-CX dated 4-4-1994 had provided that where a complaint has already been filed in the court, it will be upto the court to decide whether or not to pursue prosecution in terms of Section 257 and 321 of Cr. P.C. 1973.

Also, Hon’ble Supreme Court in case of RadheshyamKejriwal – [2011 (266) ELT 294 (SC) or – 2011-TIOL-19-SC-FEMA] held that the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the court.

In this regard, CBEC vide Circular No. 998/5/2015-CX, Dated: February 28, 2015 has provided that where on identical allegation a noticee has been exonerated in the quasi-judicial proceedings and such order has attained finality, Chief Commissioner shall give direction to the Central Excise Officer/ Customs Officer in the concerned Commissionerate to file an application through Public Prosecutor requesting the Court to allow withdrawal of the Prosecution in accordance with law.

CIRCULAR NO. 998/5/2015-CX,

Dated: February 28, 2015

Sub: Withdrawal of prosecution filed in a court – reg.

Your kind attention is invited to the issue of withdrawal of prosecution after it has been filed in a court of law. Instructions in this regard were issued on the Central Excise side vide Circular no. 30/30/94-CX dt 4-4-1994. The relevant part of the instruction contained in paragraph 5 is reproduced below –

In cases where a complaint has already been  filed in the court, it will be upto the court to decide whether or not to pursue prosecution in terms of Section 257 and 321 of Cr. P.C. 1973. If the order for withdrawal has been given by a court, the prosecution can be withdrawn  by the Assistant  Collector after getting a formal order from the Principal Collector.

2. Since then an important judgment of Hon’ble Supreme Court has laid the law on the issue of  relation  between  adjudications  proceedings  and  prosecution  in  case  of  Radheshyam Kejriwal   [2011(266)ELT294(SC) ]   .  In  this   judgment   Hon’ble Supreme Court has laid the following guidelines in paragraph 19 –

“ The ratio which can be culled out from these decisions can broadly be stated as follows:-

(i) Adjudication proceeding and criminal prosecution can be launched simultaneously;

(ii) Decision  in  adjudication   proceeding   is  not  necessary   before  initiating  criminal prosecution;

(iii) Adjudication proceeding and criminal proceeding are independent in nature to each other;

(iv) The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution;

(v) Adjudication  proceeding  by  the  Enforcement  Directorate  is not  prosecution  by  a competent  court  of  law  to attract  the  provisions  of  Article  20(2)  of  the  Constitution  or Section 300 of the Code of Criminal Procedure;

(vi) The finding in the adjudication  proceeding  in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and

(vii) In  case  of  exoneration,  however,  on  merits  where  allegation  is found  to  be  not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue underlying principle being the higher standard of proof in criminal cases.

In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the court. ”

3. It is therefore directed that where on identical allegation a noticee has been exonerated in the quasi-judicial proceedings and such order has attained finality, Chief Commissioner shall give direction to the Central Excise Officer in the concerned Commissionerate to file an application through Public Prosecutor requesting the Court to allow withdrawal of the Prosecution in accordance with law. These instructions shall mutatis-mutandis apply to the prosecution filed under the Finance Act, 1994 and under the Customs Act, 1962.

4.  Necessary instructions may be issued in this regard. Hindi version would follow.

F. No. 96/54/2014-CX.1

(Rohan)
Under Secretary to the Government of India

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Category : Excise Duty (4144)
Type : Circulars (7763) Notifications/Circulars (31860)
Tags : Budget (1956) Budget 2015-16 (272) Excise Duty Notifications (2799)

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