1990 (11) TMI 172 - HC - Central Excise

Summary

Issues:
Prosecution launched against the petitioner and refusal to release gold and penalty.

Analysis:
The petitioner was aggrieved by the prosecution launched against him and the refusal of the respondents to release 1571.500 gms of gold in the form of chains and a penalty of Rs. 3,000. Gold articles were recovered from the petitioner's possession, and the department initiated adjudicatory proceedings under the Gold (Control) Act, 1968. The Collector of Central Excise ordered confiscation of the gold articles, but the Customs, Excise & Gold (Control) Appellate Tribunal concluded that the gold ornaments were fully finished and not primary gold as per the Act. The Tribunal exonerated the petitioner, leading to a complaint lodged before the Chief Judicial Magistrate, which the Tribunal's findings deemed unnecessary to continue. The departmental adjudicatory body's finding favored the petitioner, making it improper to continue the prosecution. The Supreme Court's decision in Uttam Chand & Others v. ITO supported this view.

The department's counsel argued that the Tribunal's decision was not binding on the criminal court, citing the Supreme Court's decision in P. Jayappan v. S.K. Perumal. However, the Supreme Court clarified that a finding favorable to the assessee recorded by an authority under the Act can lead to quashing the prosecution, but it is not binding on the criminal court. In this case, the complaint focused on whether the gold articles seized were primary gold, and since the Tribunal's finding contradicted this, it was deemed unnecessary to continue the proceedings. The pending reference application before the Court was not sufficient grounds to continue the prosecution, as mere chance of success does not justify it.

Considering the facts and circumstances, the prosecution was deemed inexpedient. The Court quashed the prosecution, directed the authorities to return the seized gold articles to the petitioner, and refund the penalty. The respondents were instructed to comply with the order within a fortnight. As a result, the petition was allowed, and the rule was made absolute.