2014 (6) TMI 984 - HC - Central Excise

Offence punishable u/s 9(1)(b) 9(1)(bb) and 9(1)(bbb) of the Central Excises and Salt Act 1944 read with Rule 173 of the CER 1944 - goods removed without determination and payment of duty - Held that - the learned Magistrate had taken into consideration the length of the proceedings which were protracted on one or the other ground and therefore had rightly awarded the sentence of fine. The penalty awarded should necessarily be proportionate to the crime which is committed. The quantum of punishment/sentence would depend on the duty leviable on the seized articles. It is pertinent to note that in the present case the prosecuting agency has not specifically stated the quantum of duty which was evaded by the accused persons. It contemplates that in the case of an offence relating to any excisable goods the duty leviable thereon under this Act exceeds one lakh of rupees with imprisonment for term which may extend to seven years and with fine. It therefore follows that the prosecuting agency has to specifically state the duty leviable on the goods which is the subject of Section 9(1)(bb) and (bbb) - In the present case the same has not been considered by the learned Magistrate or the revisional Court. The very fact that revision would not be maintainable is a sufficient ground to allow the present writ petition as the judgment passed in a proceeding which is not maintainable would be a judgment without jurisdiction - petition disposed off.

Summary

Issues:
Validity of order passed by Addl. Sessions Judge in Criminal Revision Application No. 99 of 2010.

Analysis:
The petitioner challenged the order passed by the Addl. Sessions Judge, Thane, questioning the correctness and validity of the judgment. The respondent filed a complaint against the petitioner and others under Sections 9(1)(b), 9(1)(bb), and 9(1)(bbb) of the Central Excises and Salt Act, 1944. The charge was framed against the accused, and the petitioner was convicted of an offence under Section 9(1)(bbb) of the Act. The original complainant sought enhancement of sentence through Revision Application No. 99 of 2010, which was allowed by the Sessions Court, leading to the quashing of the previous judgment and remitting the matter back to the lower court for reconsideration of punishment. However, the prayer for enhancement of sentence was rejected, prompting the writ petition.

The case involved the seizure of resistors from a vehicle in 1978, leading to allegations of Central Excise duty evasion against the accused. The complainant alleged that the resistors were standard products removed without paying excise duty, resulting in the complaint filed before the Chief Judicial Magistrate, Thane. The defense was based on the record of Asian Electronics Ltd., one of the accused entities. The trial faced delays, with the complaint filed almost four years after the completion of the investigation, and the substantive evidence recorded over several years.

The judgment highlighted the procedural aspects, including the appealable nature of the Magistrate's order and the limitations on revision under Section 401(4) of the Code of Criminal Procedure, emphasizing that a revision where an appeal lies would be without jurisdiction. The court stressed the importance of proportionate punishment based on the duty evaded, which was not specifically stated by the prosecuting agency in this case. The complaint lacked a calculation of the excise duty on the seized goods, and the delay in filing the complaint was attributed to the prosecution.

Ultimately, the court held that the order of the Addl. Sessions Judge deserved to be quashed, while upholding the Chief Judicial Magistrate's order. The writ petition was disposed of, concluding the legal proceedings surrounding the validity of the judgment in the criminal case.