Subhash B. Adi, J.

1. The petitioner has sought for recalling the order passed by this Court in Crl. P. No. 3648/2001 decided on 30-3-2004 : 2004 (169) E.L.T. 145 (Kar.)].

2. The respondents had filed a Crl. P. No. 3648/2001 under Section 482 of Cr. P.C. inter alia seeking for quashing of the proceedings in C.C. No. 87/2001 then pending on the file of Addl. C.J.M., Bangalore wherein the process was ordered against the respondents for an offence punishable under Section 135 of the Customs Act.

3. The petitioner/authority had filed a private complaint under Section 200 of Cr. P.C for an offence punishable under Section 135 of Customs Act. The order of issue of summons was called in question before this Court by the respondent on the ground that the criminal prosecution is not maintainable in view of the order passed by the Customs Tribunal. It is also contended that the finding recorded by the Tribunal in favour of the respondents did not enure to the benefits of the respondents nor it will affect the rights of the department to prosecute the petitioner.

4. This Court considering the fact that Commissioner had passed an order on 10-12-1999 imposing penalty of payment of dues and also confiscation of seized goods. The respondents had filed an appeal before the Tribunal and the Tribunal after hearing both sides had recorded a finding. Those findings were extracted at para 8 of page 7 of the order of this Court:

To sum up, we find that:

(i) The order of the learned Commissioner demanding duty on spares imported by the appellants unit viz., Chiramith Precision (India) during the period 1992 to 1997, on the ground that the same were diverted for being used for the machinery installed at Tavadec Industries Pvt. Ltd. and Chirag Enterprises, is not sustainable in law, in the light of the facts explained and findings arrived in the foregoing paras.

(ii) The Ld. Commissioner erred in holding that the Appellants viz., Chiramith Precision (India) diverted raw materials imported by them to Tavadec Industries Pvt. Ltd., for being used in the products for being manufactured and sold to customers in the domestic market without adducing any proper evidence to support the same.

(iii) The Ld. Commissioner has erred in holding that the appellants viz., Chiramith Precision (India) illegally exported spares to Mr. Didier of Switzerland for allegedly setting payment due to him, without adducing any evidence for the same. No case of penalty on any appellant under Section 114 of the Customs Act, 1962 has been established.

(iv) The Ld. Commissioner erred in holding that the appellants viz., Chiramath Precision (India) imported duty free raw materials and clandestinely diverted the same to Chirag Enterprises and Tavadec Industries Pvt. Ltd., (in the guise of high generation of waste) as against the purpose for which the same were imported, without technically verifying the same. On the contrary, Chiramith Precision (India) have produced a report certified by the Regional Engineering College, Suratkal about the percentage of scrap generated during the course of manufacture of various components.

(v) As no confiscation under Section 111 of Customs Act, 1962 of any imported goods is being upheld, imposition of penalty under Section 112 called for and are required to be set aside.

(vi) Penalties imposed under Section 114 of Customs Act, 1962 cannot be upheld.

(vii) The orders of appropriation of amounts are not legal and proper and the refund of the same is required to be made.

(viii) The impugned order has been passed without considering the various submissions made by the appellants, which shows a clear non-application of mind on the part of the Ld. Commissioner. The findings of the Ld. Commissioner in the impugned order are purely on assumptions and presumptions, without any valid or corroborative evidence for substantiating the same and contradictory such findings are required to be set aside on these grounds itself.

(ix) The entire proceedings from the issue of show cause notice that the adjudication concluded by non-compliance of binding circular of Board are void and are required to be set aside for that reason alone.

5. Relying on those findings and the decision of the Apex Court and other High Courts this Court at para 18 observed as under:

In view of the facts and circumstances of the case, in the opinion of this Court, the ratio laid down in the said decisions would come to the assistance of the petitioners.

6. This Court placing reliance on the judgment reported in : AIR 1992 SC 1815 [LQ/SC/1992/324] held that this Court is empowered to exercise the inherent powers, if the case is made out that the continuing of prosecution is abuse of process of law and having regard to the facts and circumstances of the case, this Court observed that the continuance of criminal proceedings against the accused would amount to abuse of process of law and it would be in the interest of justice, if this Court should exercise inherent power and allow the petition. Accordingly, this Court fell that the continuance of the proceedings would amount to abuse of process of law and in the ends of justice this Court by invoking the provisions of Section 482 of Cr.P.C. has quashed the proceedings.

7. Sri Urval N. Ramanand, learned Senior Counsel appearing for the petitioner submitted that this petition is not for review, it is only for recalling. In support of his contention he relied on the decision of the Apex Court reported in AIR 1990 SC 1605 [LQ/SC/1990/128] in the matter of Mosst. Simrikhia v. Dolley Mukerjee @ Chabbi Mukherje and Anr. and submitted that the Apex Court while considering the power under Section 362 of Cr. P.C has observed at para 6 that the court can recall the order, but cannot review the order in view of the bar under the provisions of Section 362 of Cr.P.C. The Apex Court while considering the said matter has held that the matter involves recalling and not review, as the facts under the said case relating to taking of cognizance and transfer of cases. The Apex Court perusing the records found that there is an error in order earlier passed and had recalled.

8. This is a case where this Court on merit has found that continuation of the proceedings would be the abuse of process of law and ends of justice needs that the proceedings could be quashed. No mistake is pointed out by the learned Senior counsel. The only contention of the counsel is that against the order of the Tribunal the matter had come up in petition Tax case Nos. 17-21/2004 challenging the order dated 20-7-2001 and the said petitions are still pending and they are now converted into Civil Petitions and they are pending.

9. There was no such contention as such was raised before the learned single Judge while passing the order in Crl. P. No. 3643/2001 nor there is any clerical mistake or any omission in the order of this Court. This Court while deciding the earlier matter has relied on the Judgment of the Apex Court and also based on the findings arrived by the Tribunal has found that Tribunal is the last authority on finding of facts. Invoking the provisions of Section 482 of Cr. P.C, to recall the order in Crl. P. No. 3648/2001 would amount to review of the order of the single judge and that cannot be done under the provisions of Cr. P.C and provisions of Cr. P.C does not confer power on the High Court to review the order.

10. Further nothing prevented the department in not prosecuting the matter from 2004 by filing a SLP. The department is assisted by the legal expert and after waiting for nearly five years now it has sought for review of the order. Hence I find no grounds to interfere with the order.

11. Accordingly, this petition is dismissed.