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Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise and Customs
Circular No.998/5/2015-CX
dated the 28th Feb., 2015
To
Principal Chief Commissioners / Chief Commissioners of Central Excise (All),
Principal Chief Commissioners/Chief Commissioners of Central Excise of Central
Excise &
Service Tax (All),
Principal Chief Commissioners / Chief Commissioners of Service Tax (All),
Principal Chief Commissioners / Chief Commissioners of Customs (All),
Web-master, CBEC
Madam/Sir,
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withdrawn by the Assistant Collector after getting a formal order from the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.
- 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) or 2011-TIOL-19-SC-FEMA] . 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. ”
- 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.
- Necessary instructions may be issued in this regard. Hindi version would
follow.
(ROHAN)
Under Secretary to the Government of India
F. No. 96/54/2014-CX.1
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