itc Limited Vs. Sri S. K. Mukherjee, Enforcement Officer, Enforcement Directorate

[aftab alam ; r.m. lodha, jj.] - narcotics drugs & psychotropic substance act, 1985 - sections 8 - prohibition of certain operations -- the suspected narcotic recovered from the appellant was seized under seizure memo, exhibit p.22. the trial court by judgment and order dated 9.11.2005 passed in special case no.4/2005 held all the three accused, including the appellant guilty of offences punishable under sections 8/21(b) of the ndps act and sentenced them as noted above. against the judgment of the trial court, the appellant preferred criminal appeal no.2511/2005 before the high court. the high court dismissed both the appeals by judgment and order dated april 17, 2008. the appellant alone has come in appeal against the judgment of the high court. the present appeal arises out of the judgment dated 10.12.2007 passed by the learned single judge of the high court of allahabad (lucknow bench) whereby the learned single judge has dismissed the tax revision filed by the appellant under section 11 of the u. p. trade tax act (hereinafter referred to as "the act") impugning the judgment dated 14.8.2007 passed by the trade tax tribunal, lucknow rejecting the second appeal of the appellant/assessee. the interest charge on the tax could not have been charged under section 8(1) as the case falls under section 8(1b). as in the present case the tax becomes admittedly payable once it has been held that the tax is payable under the act, the interest would be payable in terms of subsection (1) of section 8 of the act and not in terms of subsection (1b) of section 8 of the act. this court in the case of commissioner of sales tax v. qureshi crucible centre, 1993 supp (3) scc 495 has held that where a dealer fails to pay tax at the correct rate because he claimed not to know the revision in the rate, the dealer remains liable to pay interest at a higher rate, penal rate under section 8 (1) from the date when the tax became due and payable. .....subject matter of the departmental proceeding adjudicated on 30.04.2008 with the conclusion that the same are based on presumptions and surmises and not specific as required under the established legal position and as such the departmental proceeding has already been dropped by order of the special director dated 30.04.2008 passed in accordance with the provisions of foreign exchange regulation act, 1973 read with the foreign exchange management act, 1999. from the result of such departmental proceeding it is crystal clear that the company was not involved in any transaction which allegedly culminated in the violation of sections 8(1) and 9(1a) of the foreign exchange regulation act, 1973 and as such further continuation of the proceeding against the present petitioner will be merely an abuse of the process of law as there is no chance of success of the prosecution in this case to prove the charges under section 56 read with section 68 of the foreign exchange regulation act, 1973. therefore, i hold that there is sufficient merit in this revisional application which is allowed to prevent the abuse the process of law and as such the instant proceeding is quashed and the petitioner is discharged. 4. urgent photostat certified copy of this order, if applied for, be given to the parties as early as possible.