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TMI Blog2010 (5) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,298.30 as SED). Thus, for intentional evasion of excise duty to the tune of Rs.4,05,264.30, the accused petitioners are said to have committed an offence punishable Criminal Misc. No. 56542-M of 2004 under Section 9 of the Central Excise & Salt Act, 1944 (hereinafter referred to as, 'the Act'). The prayer made in the present petition filed under Section 482 Cr.P.C. is to quash the complaint (Annexure P-1) instituted by Assistant Collector, Central Excise Division, Ludhiana in the Court of Chief Judicial Magistrate, Ludhiana, along with all subsequent proceedings, including the summoning order, especially the order (Annexure P-10) dated 25th September, 2004, whereby the application submitted by the petitioners under Section 245 Cr.P.C. for dropping the proceedings was dismissed. The main plea for seeking the relief prayed for is that the criminal complaint (Annexure P-1) was preferred on the basis of order (Annexure P-2) dated 30th November, 1992 passed by the Collector of Central Excise, Chandigarh, whereby the Collector had imposed and demanded a duty of Rs.4,05,264.30 from the petitioners and had also imposed a penalty of Rs.1,00,000/- on petitioner No.1 - Company besides a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged that the Board has decided to further enhance the monetary limit for launching prosecution from Rs.1 lac to Rs.5 lac and has further decided to further enhance the monetary limit of Rs.5 lacs to Rs.25 lacs prospectively so as to ensure better utilization of manpower, time and resources of the department but this complaint was filed in 1994 much before this notification was issued. So, in these circumstances, I am of the view that criminal Court have to decide the complaint independently of the decision of Customs, Excise and Gold (Control) Appellate Tribunal. So, this application being without any merits is hereby dismissed." Mr.O.P. Goyal, Senior Advocate assisted by Ms.Kanwaljeet Kaur, Advocate has urged that in view of the judgment of Hon'ble the Apex Court rendered in 'G.L. Didwania v. Income Tax Officer' 1999 (108) E.L.T. 16 (S.C.), on the same allegation of which the accused were absolved by the Tribunal, the prosecution cannot be sustained. In G.L. Didwania's case (supra), Hon'ble the Apex Court observed as under: "4. In the instant case, the crux of the matter is attracted and whether the prosecution can be sustained in view of the order passed by the Tribunal. As n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... technicality but on firm finding of fact recording that there was no concealment by the assessees and under these circumstances the question of imposing the penalty did not arise. Another order of the Tribunal dated August 29, 1991 is appended as Annexure P-3, vide which the Tribunal declined to refer the matter to the High Court. 12. In these circumstances, the observations made in G.L. Didwania's case (supra) are fully attracted to the fact of this case. It was observed by the Apex Court in G.L. Didwania's case as follows:- 'In the instant case, the crux of the matter is attracted and whether the prosecution can be sustained in view of the order passed by the Tribunal. As noted above, the assessing authority held that the appellant-assessee made a false statement in respect of income of Young India and Transport Company and that finding has been set aside by the Income-tax Appellate Tribunal. If that is the position then we are unable to see as to how criminal proceedings can be sustained." To similar effect is the judgment of another Single Bench of this Court rendered in 'S.G. Chandra (Dr.) v. Enforcement Officer, DTE, FERA' 2004 (170) E.L.T. 402 (Kar.). From the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or both is seen to be controlled by the respective provisions themselves. In the context of the inclusion of this Act in the Ninth Schedule, the reliance placed on the decision in Rayala Corporation (P) Ltd. & Ors. v. Director of Enforcement, New Delhi, (1962 (2) SCC 412) cannot enable this Court to deem the provisions as arbitrary and to read them down or understand them in the manner suggested by the learned senior counsel. The very purpose of the Act and the very object of inclusion of the Act in the Ninth Schedule justifies an interpretation of the provisions as they stand on the basis that there is nothing arbitrary or unreasonable in the provisions and in the scheme as enacted. We may also notice that Section 23D of the Foreign Exchange Regulation Act, 1947 which was considered in Rayala Corporation (P) Ltd. & Ors. had a proviso, which indicated that the adjudication for the imposition of penalty should precede the making of a complaint in writing to the concerned Court for prosecuting the offender. The absence of a similar proviso to Section 56 or to Section 51 of the present Act, is also a clear indication that the legislature intended to treat the two proceedings as ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng taken out they were being weighed. Thus, there is probability of use of the trucks for that purpose and weighment thereof. Thus, even if it is treated as not convincing reply what is produced by the department to show that 653.945 MT of steel ingots were illicitly manufactured or clandestinely removed except Dharamkanta slips. As indicated previously that these dharamkanta slips did not show the description of the good weighed therefore, they cannot be accepted as sole evidence to prove that the goods weighed under Dharamkanta slips were steel ingots. In the circumstances we hold that the allegation of clandestine removal has not been proved. In the circumstances the demand for duty amounting to Rs.4,05,256.30 is set aside." A perusal of the impugned complaint (Annexure P-1) that for prosecuting the accused petitioners, complainant had relied upon voluntary statement of Dharampal Singh, Driver; voluntary statement made by Ajit Singh, Director of M/s Sudershan Steel Re-rolling Mills, Ludhiana and the statement of Santokh Singh, Gate Supervisor of M/s Sudershan Steel Rerolling Mills, Ludhiana; besides the observations of the Investigating Officers, who had conducted search of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to see the reasons for such exoneration to determine whether these criminal proceedings could still continue. If the exoneration in departmental adjudication is one technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. If, on the other hand, the exoneration in the adjudication proceedings is on merits and it is found that allegations are not substantiated at all and the concerned person(s) is/are innocent, and the criminal prosecution is also on the same set of facts and circumstances, the criminal prosecution cannot be allowed to continue. The reason is obvious criminal complaint is filed by the departmental authorities alleging violation/ contravention of the provisions of the Act on the part of the accused persons. However, if the departmental authorities themselves, in adjudication proceedings, record a categorical and unambiguous finding that there is no such contravention of the provisions of the Act, it would be unjust for such departmental authorities to continue with the criminal complaint and say that there is sufficient evidence to foist the accused w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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