Page 71 - GSTL_30th April 2020_Vol 35_Part 5

2020 ] GOVIND AGARWAL v. STATE OF U.P. 557
The Delhi High Court also considered this question arising out of a case
under Foreign Exchange Regulation Act, in detail in the case of Sunil Gulati
& Anr. v. R.K. Vohra - 145 (2007) DLT 612, and held as follows :-
“In case of converse situation namely where the accused persons are
exonerated by the competent authorities/Tribunal in adjudication
proceedings, one will have to see the reasons for such exoneration to
determine whether these criminal proceedings should still continue.
If the exoneration in departmental adjudication is on technical
ground or by giving benefit of doubt and not on merits or the adjudi-
cation proceedings were on different facts, it would have no bearing
on criminal proceedings. If, on the other hand, the exoneration in the
adjudication proceedings is on merits and the concerned person(s)
is/are innocent, and the criminal prosecution is also on the same set
of facts and circumstances, the criminal prosecution cannot be al-
lowed to continue. The reason is obvious criminal complaint is filed
by the departmental authorities alleging violation/contravention of
the provisions of the Act on the part of the accused persons. Howev-
er, if the departmental authorities themselves, in adjudication pro-
ceedings, record a categorical and unambiguous finding that there is
no such contravention of the provisions of the Act, it would be unjust
for such departmental authorities to continue with the criminal com-
plaint and say that there is sufficient evidence to foist the accused
persons with criminal liability when it is stated in the departmental
proceedings that ex facie there is no such violation. The yardstick
would, therefore, be to see as to whether charges in the departmental
proceedings as well as criminal complaint are identical and the exon-
eration of the concerned person in the departmental proceedings is on
merits holding that there is no contravention of the provisions of any
Act.”
8. He has also placed reliance upon the judgment rendered in Chitra
Builders P. Ltd. v. Addl. Commr. of C., C.E. & S.T. Coimbatore, 2013 (31) S.T.R. 515
(Mad.) in which it has been held :
“that collection of Rs. 2.00 crores by the Department from, petitioner-
company during search conducted, cannot be held to be valid even though
it had been stated on behalf of the Department that a sum of Rs. 2.00 crores
had been collected from the petitioner-company, voluntarily, in respect of
its Service Tax liability, it has not been shown by the Department that the
petitioner was liable to pay Service Tax to the respondent Department relat-
ing to the works being carried on by it during the course of its business. No
tax could be collected from the assessee, without an appropriate assessment
order being passed by the authority concerned and by following the proce-
dures established by law and accordingly the respondent was directed to
return the sum of Rs. 2.00 crores, collected from the petitioner.”
9. He has further placed reliance upon the judgment rendered in Metal
Forgings v. Union of India, 2002 (146) E.L.T. 241 (S.C). Attention has been drawn to
para 10 of this judgment, which is quoted hereinbelow :
“10. It is an admitted fact that a show cause notice as required in law has
not been issued by the revenue. The first contention of the revenue in this
regard is that since the necessary information required to be given in the
show cause notice was made available to the appellants in the form of vari-
ous letters and orders, issuance of such demand notice in a specified man-
ner is not required in law. We do think that we cannot accede to this argu-
ment of the Learned Counsel for the revenue. Herein we may also notice
that the Learned Technical Member of the tribunal has rightly come to the
conclusion that the various documents and orders which were sought to be
treated as show cause notices by the appellate authority are inadequate to
be treated as show cause notices contemplated under Rule 10 of the Rules
or Section 11A of the Act. Even the Judicial Member in his order has taken
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