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TMI Blog2015 (4) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... r recovery of excise duty. The Tribunal found case to be falling in first category having limitation of 6 months and not in second category having limitation of 5 years. The order was passed in favour of the assessee after recording finding on the issue of limitation, thus it becomes clear that determination of the issues by the Tribunal was not on merit but on limitation. It may be that arguments were made even on merit but no finding has been recorded, if the order of the Tribunal is perused. Determination of issue by the Tribunal is not on merit but on a technical ground of limitation. The same is the position regarding reference whether determination of the issue was not made but reference was dismissed on account of default in appearance of the parties concerned. - In absence of determination of issues on merit, the non-petitioner cannot take shelter of judgment of Apex Court in the case of K.C. Builders (2004 (1) TMI 7 - SUPREME Court). In the instant case, Section 9 of the Act of 1944 does not provide any limitation to initiate the proceedings though there may be limitation for taking cognizance of offence under Cr.P.C. The issue aforesaid is not raised before me. When th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with penalty can be made, whereas in the other, order of punishment is passed. The two proceedings operated in distinct areas and with different consequences. To support the argument, a reference of judgment of Supreme Court in the case of Standard Chartered Bank v. Directorate of Enforcement AIR [2005] SC 2622 has been given. A prayer is accordingly made to quash the impugned order. 4. Per contra, learned counsel for non-petitioners submitted that allegation against the non-petitioners was for taking benefit of Modvat in an illegal manner. A notice was issued by the Commissioner of Excise. The Tribunal found notice to be beyond the period of limitation, thus it was set aside. A reference before the High Court also resulted with same fate as it was dismissed in default. In view of the above, demand of excise duty by alleging wrongful benefit of Modvat was decided against the department and in favour of the assessee. Once the excise duty was not imposed, the prosecution for taking wrongful benefit of Modvat was not permissible. The revisional court, thus discharged the non-petitioner-company. Learned counsel has given reference of Sections 9 11 of Central Excise Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of excise duty on final products; (c) fails to supply any information which he is required by rules made under this Act to supply, or (unless with a reasonable belief, the burden of proving which shall be upon him, that the information supplied by him is true) supplies false information; (d) attempts to commit, or abets the commission of, any of the offences mentioned in clauses (a) and (b) of this section; shall be punishable, - (i) in the case of an offence relating to any excisable goods, the duty leviable thereon under this Act exceeds fifty lakh of rupees, with imprisonment for a term which may extend to seven years and with fine : Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court such imprisonment shall not be for a term of less than six months; (ii) in any other case, with imprisonment for a term which may extend to three years or with fine or with both. (2) If any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable 'for the second and for every subsequent offence with imprisonment for a term which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided that where the person (hereinafter referred to as predecessor) from whom the duty or any other sums of any kind, as specified in this section, is recoverable or due, transfers or otherwise disposes of his business or trade in whole or in part, or effects any change in the ownership thereof, in consequence of which he is succeeded in such business or trade by any other person, all excisable goods, materials, preparations, plants, machineries, vessels, utensils, implements and articles in the custody or possession of the person so succeeding may also be attached and sold by such officer empowered by the Central Board of Excise and Customs, after obtaining written approval from the Commissioner of Central Excise, for the purposes of recovering such duty or other sums recoverable or due from such predecessor at the time of such transfer or otherwise disposal or change. (2)(i) The Central Excise Officer may, by a notice in writing, require any other person from whom money is due to such person, or may become due to such person, or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government either forthwith upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere made even on merit but no finding has been recorded, if the order of the Tribunal is perused. 8. The other proceedings are through a reference to the High Court. There again reference has not been answered either way but proceedings were terminated on account of default of the party to appear, therefore, determination of the issues was not on merit. The aforesaid facts are relevant and have its effect on the proceedings under Section 9 of the Act of 1944. It is in reference to judgment cited by the learned counsel for non-petitioner in the case of K.C. Builders (supra). It was a case in reference to Income Tax Act but the ratio propounded therein may apply to this case also. It could have been applied but having distinguishable fact, it cannot be. In the case of K.C. Builders (supra), two separate proceedings were initiated. One was for recovery of income tax and other for punishment. In the first proceedings, determination was made on merit. In view of the above, Hon'ble Apex Court found no reason to allow the criminal proceedings to continue and accordingly appropriate order was passed. The case in hand is not having similarity. In the instant case, determination of is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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