9911796707
TMI Blog1984 (7) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... of as an appeal under this order. 2. Under his order dated 31-12-1978 the Collector of Central Excise, Calcutta, held that six or more workers were employed by the appellant in its factory and hence, the appellant was not entitled to the benefits under Notification No. 90/76, dated 16-3-1976. On that conclusion he imposed a penalty of Rs. 35,000/- and also demanded duty amounting to Rs. 31,162.50 ps. relating to the period 21-10-1976 to 20-1-1977. On an appeal by the appellant against the said order the Central Board of Excise & Customs by Order dated 29-5-1980 confirmed the said order except to the extent of reducing the penalty to Rs. 20,000/-. It is against the said order dated 29-5-1980 that the revision petition had been preferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of revision, since the revision had been preferred in August, 1980, the judgment of the Criminal Court being rendered in March, 1982. The prosecution appears to have been for violation of Section 9 of the Central Excises & Salt Act, the substance of the complaint being that though the appellant was not entitled to the benefits under Notification No. 90 of 1976 and had, therefore, to take out the necessary licence and maintain the necessary records and to remove the manufactured commodity after payment of excise duty only, the appellant had failed to do so. Therefore, in that case also the main question to be decided was whether the appellant company had employed more than five workers in its manufacturing process, which is the main quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent if, in spite of trial by a Criminal Court on the same facts, the domestic Tribunal were to come to a different conclusion on the same facts. But there cannot be a complete prohibition against the Tribunal coming to a different conclusion, for it is well-known that the Tribunal is not bound by several rules that are binding on appreciation of the evidence by a Criminal Court." It is, therefore, clear that the judgment of the Chief Judicial Magistrate, while it may be of some persuasive value, would not be binding on this Tribunal in the sense that the Tribunal should necessarily follow the finding of the Criminal Court and dispose of this appeal in consonance with the said findings as laid down in the latter Madras decision cited by Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the goods dispatched to the party and purchaser, defective materials from the market for the factory. There is another man designated as watchman named Subhash. He performs the duty in the night only and his duty is to look after the factory side." Items 1 to 3 of the above list would normally be sufficient to establish that Shri Gupta was also engaged in work relating to the manufacturing process, though his designation may be clerk/salesman. In that event he should also be included in the number of workers for deciding upon the benefit of Notification No. 90/76. Under the said notification the benefit thereof shall not be extended to factories wherein six or more workers are working or were working on any day of the preceding 12 months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta and not made to the dictation of the officials. Nor has it been proved through any evidence during the adjudication that any threat or coercion was exercised to obtain the statement of Shri Gupta on 21-1-1977. Shri Gupta was the third accused in the criminal case. The statement on 21-1-1979 does not appear to have been brought on record as evidence in the criminal case and so was not considered by the learned Chief Judicial Magistrate in his judgment. In the circumstances, it has to be necessarily held, on the basis of the said statement, that though Shri Gupta may have been designated as clerk/salesman, he was, in fact, attending to work connected with the manufacturing process also and should, therefore, be counted amongst the numb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufactured product should be cleared only in accordance with rules after payment of duty also. It is thereafter that licence had been applied for though under protest and it is in that connection that the Superintendent had written the Letter dated 31-12-1976 referring to the appeal preferred also. In these circumstances, the continued infraction by the appellant cannot be said to be an act without the requisite mens rea so as to exclude a case requiring imposition of penalty. We are satisfied that the appellant was liable to pay penalty. The quantum of penalty has been reduced by the Board under its order and we see no reason to reduce it further. 11.In the result, the order of the lower authorities is confirmed and this appeal is dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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