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TMI Blog1993 (2) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... take any action pursuant to that Order which may cause prejudice to the appellants. 2. Under Order-in-Original No. 29/CE/91, dated 28-10-1991 the Collector, Central Excise, Chandigarh had demanded a duty of Rs. 60,52,808.37 under Section 11A of the Act from the appellants, on account of clearances of excisable goods effected at the lower assessable value. He has also imposed a penalty of Rs. 4,00,000/- (Rs. four lakhs) under Rule 173Q of the Central Excise Rules, 1944 (hereinafter referred to as the Rules ) on the appellants on account of contravention of the provisions of the rules as discussed in his Order-in-Original, referred to above. Farther a penalty of Rs. 2000/- has been imposed on the appellants under Rule 226 read with Rule 227 of the rules. 3. Under Stay Order No. 212/92-A, dated 18-5-1992 the Tribunal had observed that prima facie the merits of the case are contentious and arguable. Keeping in view the totality of the facts and circumstances of the case, the Tribunal dispensed with the pre-deposit of the penalty amount of Rs. 4,02,000/- while ordering the appellants to pay the balance duty amount of Rs. 10,10,870/- within 6 weeks time from 18-5-1992. It was furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re involved in this case. One related to the law for approaching this Tribunal for stalling the prosecution proceedings, and the other related to the merits of the case. On the first point, he pleaded that there was no power under the Act under which they could approach the Tribunal with regard to the sanction or launching prosecution in a Court of Law. As regards the inherent powers of the Tribunal in his view only when there were no specific powers then alone one could go to the inherent powers. 9. He submitted that each Section in the Act was independent. He referred to the ingredients of Sections 9, 9A and 9AA of the Act, and stated that the Collector s Order for initiating the prosecution was not a judicial order. It was only an administrative order and that there were no powers with the Tribunal in this regard particularly when no order as such sanctioning prosecution was before the Tribunal. 10. Relying upon the Tribunal s Misc. Order No. 39/88-B, dated 15-7- 1985 in the case of Pressure Cookers and Appliances Ltd., Jullundar v. Collector of Central Excise, Chandigarh, he pleaded that the Tribunal may not interfere in the matter. Referring to Rule 41 of the CEGAT rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the appeal deposit with the adjudicating authority the duty demanded or the penalty levied. 18. It has, however, been provided that where in any particular case the Tribunal is of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interests of Revenue. 19. Prosecution in a Court of Law is provided under Section 9 of the Act:- Section 9. Offences and penalties. - (1) Whoever commits any of the following offences, namely :- (a) contravenes any of the provisions of a notification issued under Section 6 or of Section 8, or of a rule made under clause (iii) of sub-section (2) of Section 37; (b) evades the payment of any duty payable under this Act; (bb) removes any excisable goods in contravention of any of the provisions of this Act or any rules made thereunder or in any way concerns himself with such removal; (bbb) acquires possession of, or in any way concerns himself in transporting, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with any excisable good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been provided:- Section 9AA. Offences by companies - (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: . Provided mat nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s where there is specific provision for sanctioning of prosecution by the Collector, Customs, it is for the Court to take a view in the matter. The Gujarat High Court, Ahmedabad in the case - Jayantilal Maneklal Soni and Others v. Union of India [S.C.A. No. 69 and 122 of 1984 = 1984 (16) E.L.T. 33 (Guj.)] had observed as under :- There is no prohibition against proceedings under the Customs Act being taken up and continued during the pendency of the Criminal Proceedings...........we do not think that the order of the Customs authorities declining to stay the proceedings is vitiated by any erroneous exercise of discretion. 25. In the case - Maniklal Pokhraj Jain v. Collector of Customs (Preventive), Bombay and Others [1986 (26) E.L.T. 689 (Bom.)] the Bombay High Court had held that adjudication proceedings before the departmental authorities were independent of prosecution. They quoted with the approval, the following observations of the Division Bench of the Bombay High Court in Misc. Petition No. 85 of 1978:- 15. Section 112 is an express provision which authorises the levy of penalty in respect of acts or omissions referred to therein. The procedure with regard to adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible in regular Court of law in which the admissibility and relevance of the evidence is determined with reference to the provisions of the Evidence Act. In a Criminal prosecution the accused need not open his mouth nor make any statement while in the proceedings for adjudication or confiscation before the Customs Department, the statement made by the person from whom the contraband articles were seized can be looked into. The scheme of the Act, therefore, clearly indicated that the two proceedings have to be dealt with independently of each other on such material as is available and permissible in these proceedings. 26. In the case - Satyanarayan, Indore v. Collector of Central Excise, New Delhi [1987 (29) E.L.T. 450 (Tribunal)], the Tribunal relying upon the above decision of the Divisional Bench of Bombay High Court had observed that it was settled law that criminal proceedings were separate from adjudication proceedings and that by its very nature the two proceedings were independent of each other and the adjudication proceedings before the Departmental authorities were not affected by the criminal Court. In 1967 I MLJ 146 Para 7 it has been held. as under :- No doubt, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a bearing on the proceedings before it is imminent so that it may take also into consideration the order to be passed therein. Even here the discretion should be exercised judicially and in such a way as not to frustrate the object of the Criminal Proceedings. There is no rigid rule which makes it necessary for a criminal Court to adjourn or postpone the hearing of a case before it indefinitely or for an unduly long period, only because some proceedings which may have some bearing on it is pending elsewhere. On this aspect the learned Counsel for the petitioners brought to my notice the judgment of the Gujarat High Court in Digvijay Cement Co. v. State of Gujarat [1989 (22) ECR 638 (Gujarat)] wherein S.S. Kapadia, J. held that when the matter was pending before the Tribunal, and the possibility of allowing the appeal could not be ruled out, the petitioner cannot be said to have committed any offence and it was in the interest of justice, stay of criminal proceedings could be ordered till the hearing of the appeal pending before the Tribunal. Since I have quoted the view of the Supreme Court relating to exercise of such power, in appropriate cases, as a general rule, the view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be construed as one falling within the ambit of Section 300 of the Cr. P.C. In this view of the matter, notwithstanding a finding had been recorded by the Adjudicating Authority giving a clean chit that the petitioners had not retained any foreign exchange to their credit with M/s. Menrad, West Ger- many, the petitioners cannot be stated to be immune from criminal prosecution and further it is Open to the Criminal Court to arrive at a finding different from the one given by the Adjudicating Authority, on consideration of the materials and evidence placed before it. 31. In the case before us the matter has already been adjudicated by the Collector, Central Excise, Chandigarh, and the appellants have been found liable to duty and penalty. This Adjudication Order is already in appeal before us and we have yet to take a view on the merits of the case. 32. In the case - Uttam Chand Others v. Income Tax Officer, Central Circle, Amritsar [1982 ITR Vol. 133 P. 909], the Hon ble Supreme Court had held in an income tax case that in view of the finding recorded by the Appellate Tribunal that Shrimati Janak Rani was a partner of the firm and that the firm was genuine, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal refers to appeal against a decision or order. Under Section 129C(6), the Tribunal have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its function. The basis for the procedure before the Appellate Tribunal is the decision or order as per Section 35B. 40. We are, therefore, of the view that this Tribunal had no powers to intervene in a matter relating to sanctioning or launching of prosecution. 41. The learned Senior Advocate had invited our attention to Rule 41 of the CEGAT Rules and had pleaded that under its inherent powers, the Tribunal should direct the Collector, Central Excise, Chandigarh not to proceed with the prosecution if the prosecution is based on the adjudication order which is presently under appeal before us. 42. Making of orders or giving of directions under Rule 41 of the CEGAT Rules will have to be related to its orders or to prevent abuse of its process with regard to such orders or to secure the ends of justice with regard to such orders. Securing ends of justice will have to be read along with the orders of the Tribunal or to prevent abu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferently, the general expression has to be read to comprehend things of the same kind as those referred to by the preceding specific things constituting a genus, unless of course from the language of the statute it can be inferred that the general words were not intended to be so limited and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning. The cardinal rule of interpretation is to allow the general words to take their natural wide meaning unless the language of the statute gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of this rule and they may be required to fall in line with the specific things designated by the preceding words. But unless there is a genus which can be comprehended from the .preceding words, there can be no question of invoking this rule. Nor can this rule have any application where the general words precede specific words. 7. There can be little doubt that the words other legal proceeding are wide enough to include adjudication and penalty proceedings under the Act. Even the learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the following conditions exist : (i) the statute contains an enumeration of specific words; (ii) the subjects of enumeration constitute a class or category; (iii) that class or category is not exhausted by the enumeration; (iv) the general term follows the enumeration; and (v) there is no indication of a different legislative intent. (See Amar Chandra v. Excise Collector, Tripura [AIR 1972 S.C. 1863 at p. 1868]. [Southerland, Vol. 2 pp. 399, 400]. 48. In Byrne s Law Dictionary ejusdem Generis is defined as follows :- It is a rule of legal construction that general words following enumeration of particulars are to have their generality limited by reference to the preceding particular enumeration and to be construed as including only all other articles of the like nature and quality. [Quoted in AIR 1928 Rangoon 31.] 49. In this view of the matter, the expression to secure the ends of justice have to be read with the preceding expression in relation to its orders or to prevent abuse of its process . 50. On the point of edjusdem generis the facts in the case - Track Parts Corporation v. Collector of Customs [1992 (57) E.L.T. 98 (Tribunal)] were different as the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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