ORDER The short facts of the prosecution case are as follows:- The respondent herein / Assistant Commissioner of Customs has filed a complaint in E.O.C.C.No.280 of 2008, on the file of the Additional Chief Metropolitan Magistrate (E.O-1), Egmore, Chennai-8 against the revision petitioner herein stating that the first petitioner firm, viz., M/s.Cyclops Groups imported six consignments and cleared the same for home consumption. It is further allegation of the complainant that the accused, in order to avoid Anti Dumping Duty in terms of notification No.147/2003-Cus dated 17.10.2003, mis-declared the consignments of measuring tapes to be of Malaysian origin, whereas the goods are of Chinese origin and originated and exported from China. After completion of investigation, the Directorate of Revenue Intelligence, Zonal Unit, Bangalore issued a show-cause notice dated 28.11.2006 in respect of the above said consignments answerable to the Commissioner of Customs, Seaport-Import, Chennai. 2. While the case was pending, the accused filed the discharge petition in M.P.No.1819 of 2010, to discharge them from the said criminal proceedings. The said petition has been resisted by the respondent after filing counter statement. The learned Magistrate, after hearing the arguments of the accused and on hearing the arguments of the learned Special Public Prosecutor, dismissed the said discharge petition. 3. Aggrieved by the said dismissal order, the above revision has been filed by the accused. 4. The learned counsel for the revision petitioners argued that the Director of Revenue Intelligence, Zonal Unit, Bangalore conducted investigation and issued a show-cause notice dated 28.11.2006, in respect of the above said consignments and the same is pending adjudication at the hands of the Commissioner of Customs, Seaport-Import, Chennai. As such, a department appeal is pending and under the circumstances, the complainant has filed a complaint in E.O.C.C.No.280 of 2008, before the learned Magistrate, Egmore, which is a parallel proceeding on the same issue. Further, the said Commissioner of Customs sanction order has been issued for prosecution against the accused before the Court which is not appropriate since the proceedings are pending on his file. On the side of the complainant, four witnesses have been examined and also complainant's side witnesses were closed. As per the evidence of the prosecution witnesses, no prima-facie case has been made out for the alleged offences under Section 132 and 135 of Customs Act. On the side of the complainant, four witnesses have been examined and also complainant's side witnesses were closed. As per the evidence of the prosecution witnesses, no prima-facie case has been made out for the alleged offences under Section 132 and 135 of Customs Act. Further, the main ground raised by the petitioner in the said application is that from the evidence adduced, it is clear that the consignments had been imported and cleared for home consumption which constituted a concluded assessment under Section 47 of the Customs Act. Further, such concluded assignments had not been reopened in a manner known to law. In view of the assessment having not been re-opened, the proceedings before the trial Court is not maintainable under law. Further, the learned Magistrate failed to note that the invoice, packing list, certificate of origin and bill of lading filed by the petitioners before the Customs authorities had not been disputed or alleged to be forged. Further, there is no material or evidence let in by the prosecution to disprove the authenticity of these documents. The invoices seized during the course of investigation are only attributable to proforma-invoice, which after sustained negotiations with the overseas supplier had resulted in bringing down the price, based on which the goods have been imported and invoice and other documents obtained, which has been filed before the customs authorities for assessment, examination and clearance of imported goods. Therefore, mis-declaration does not arise in this case. The highly competent counsel further argued that no efforts had been taken even to issue summons to the overseas supplier calling for their explanation. Further, no enquiry or investigation has been made with the liner or with the malaysian authorities regarding the correctness and legality of the documents seized. 5. Further, no enquiry has been made as to whether the container in which the material arrived or the ship in which the goods reached India had its origin in China. In the absence of vital lacuna, the complaint is not sustainable under law. 6. 5. Further, no enquiry has been made as to whether the container in which the material arrived or the ship in which the goods reached India had its origin in China. In the absence of vital lacuna, the complaint is not sustainable under law. 6. The very competent counsel for the revision petitioner further argued that the learned trial Court judge erred in coming to a conclusion that the imported goods are liable to Anti Dumping Duty, whereas, in the instant case, the goods have been imported from Malaysia, which is substantiated by certificate of origin issued by the Malaysian Government, bill of lading issued at Malaysia, invoice and packing list corroborating that the goods have been sold from Malaysia. As such, when there is sufficient and more significant evidence to state that the goods imported are from Malaysia, which has not been controverted, then in such circumstances, Anti Dumping Duty cannot be levied, as the same is leviable only if the goods originated or was exported were from China, as per terms of notification No.147/2003, Customs dated 07.10.2003. The trial Court has committed grave error in as much as it has taken cognizance of the complaint on the strength of a sanction order issued by the Commissioner of Customs (Seaport-Import), Chennai, while the adjudication on the similar set of facts are still pending adjudication that too before the very same authority. Therefore, without knowing the outcome of the adjudication proceedings pending on the file of the Commissioner of Customs, the said complaint is not maintainable. The two proceedings had been initiated on the same cause of action before the Department authority as well as before the Judicial forum which is against principle of natural justice. 7. The learned counsel for the revision petitioner further submitted that the entire facts of the complaint is on the basis of two statements recorded under Section 108 of Customs Act, 1962 by the Senior Intelligence Officer from the second accused. It is submitted that these statements have to be eschewed for the reason that they are voluntarily and tainted on account of it not been recorded in a manner known to law. The learned counsel supporting his case, has cited the following judgment:- RADHESHYAM KEJRIWAL Vs. It is submitted that these statements have to be eschewed for the reason that they are voluntarily and tainted on account of it not been recorded in a manner known to law. The learned counsel supporting his case, has cited the following judgment:- RADHESHYAM KEJRIWAL Vs. STATE OF WEST BENGAL reported in 2011 (266) E.L.T.294 (S.C.) "Foreign exchange violations - Adjudication and criminal proceedings - Both can be launched simultaneously; decision in adjudication being unnecessary for initiation of criminal prosecution - Both proceedings are independent to each other - Finding in adjudication proceeding is not binding in criminal prosecution - Person held liable to penalty in adjudication cannot necessarily be held guilty in criminal trial - However, where adjudication finds allegation against the accused to be unsustainable on merit, criminal prosecution on same set of facts and circumstances cannot be allowed to continue, underlying principle being higher standard of proof in criminal cases - If exoneration in adjudication is on technical ground and not on merit, prosecution may continue - Also, adjudication proceeding by Enforcement Directorate is not prosecution by Court of law to attract Article 20(2) of Constitution of India or Section 300 of Code of Criminal Procedure, 1973. (Majority per: Harjit Singh Bedi and Chandramauli Kr.Prasad, JJ)" 8. The highly competent counsel for the respondent argued that on the side of the prosecution, four witnesses were examined and the case is posted for defence side evidence. Therefore, the accused has got an opportunity to establish their case before the trial Court and hence, at this stage, the discharge petition is not maintainable. The main issue in this case is whether the declaration given by the accused stating that the consignments are measuring tapes of Malaysian origin is correct or not and this issue can be decided only by way of adjudication and by scrutiny of relevant records. Therefore, on the side of the prosecution, triable issues are involved. The accused had imported six consignments of measuring tapes covered under six bills dated 26.04.2005 and had cleared the same for home consumption. The accused declared that the goods originated from Malaysia but actually, the goods had originated from China. As such, the accused, with mala-fide intention of evading duty had mis-declared the items. 9. The accused had imported six consignments of measuring tapes covered under six bills dated 26.04.2005 and had cleared the same for home consumption. The accused declared that the goods originated from Malaysia but actually, the goods had originated from China. As such, the accused, with mala-fide intention of evading duty had mis-declared the items. 9. The learned counsel for the respondent further submitted that the accused had produced the fabricated certificate to show the country of origin as Malaysian origin instead of China with the intention to evade Anti Dumping Duty. The very same accused knowingly had produced the overseas invoice which was fabricated at Malaysia with the active connivance of one M/s.Loewe of M/s.Ninbgo F.T.2 Sonbany Industry Co. Ltd., China. The accused agreed that the Department has seized original/correct invoice of Chinese supplier which has resulted in Revenue loss of Rs.1,66,45,632/-. Therefore, trial is absolutely necessary in the said prosecution case. The learned counsel further submitted that the statements recorded under Section 108 of the Customs Act are vital and forms part of basis of evidence by the petitioner. All the documents seized against this area, clearly show that the invoice/certificate of country of origin were fabricated to suit the need of the petitioner to cheat the Government by evading Anti Dumping Duty. This fact has been proved by the fact that all the remittance were made to the original suppliers at China through M/s.Andhra Bank, Bangalore. The verification of the details of the Malaysian Suppliers proves that the firm is only a trading agent and not a manufacturing company. The second accused has forged the documents as though they were signed by his overseas supplier at Malaysia with the name of ALAM & MURTHY. The imports were made at Tuticorin and JLPT, Bombay were based on fabricated documents showing country of origin as France instead of China to evade Anti Dumping Duty. The learned counsel further submits that the nature of case is covered under Section 132 and 135(1)(a)(b) of the Customs Act. Therefore, the case has been taken on file as there is a prima-facie case on the side of the prosecution. 10. The learned counsel further submits that the nature of case is covered under Section 132 and 135(1)(a)(b) of the Customs Act. Therefore, the case has been taken on file as there is a prima-facie case on the side of the prosecution. 10. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned order of the trial Court, this Court does not find any discrepancy in the conclusions arrived at for dismissing the discharge petition. This Court is of the further view that the prosecution case is at a partly heard stage and the case has been posted for defence side evidence and as such, the defence side has an opportunity to establish the case by way of adjudication. Further, in the said prosecution case, triable issues are involved. In this case, the prosecution had made out that the accused had evaded payment of duty to the tune of Rs.1,66,45,632/-, which is an exorbitant amount. Therefore, adjudication is necessary to decide all issues on merits. Therefore, this Court directs the learned Magistrate to dispose the main case on the top most priority basis, without being influenced by this Court's discussions. 11. In the result, the above revision is dismissed with the above observations. Consequently, order made in M.P.No.1819 of 2010 in E.O.C.C.No.280 of 2008, on the file of the Additional Chief Metropolitan Magistrate (E.O-1), Egmore, Chennai-8, dated 31.08.2010 is confirmed. Accordingly ordered. Connected miscellaneous petition is closed.