9911796707
TMI Blog1998 (8) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Dept. conducted a test check of NOW FTK - 20 SC brand cigarettes under clearance from the manufacturing facilities at Bangalore of ITC Ltd. on the 5th, 6th and 8th Sept. 1986. In that verification it was found that 1.6% in aggregate of the cigarette packets varied/differed substantially in colour/design from the ones which were approved by the Director, Audit, New Delhi, in terms of Notification No. 201/85-C.E., dated 2-9-1985. According to the complainant, this related to insertion of ITC Monogram and the words quality to read as a quality product of ITC Ltd. instead of a Product of ITC Ltd. in the 1.6% aggregate of the packets cigarettes printed NOW FTK 20 SC . Under the provisions of Notification No. 201/85, dated 2-9- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this argument, the learned counsel for the petitioners also placed reliance on the decision reported in [AIR 1983 SC 67] Municipal Corporation of Delhi v. Ram Kishna Rohtagi and Others, [AIR 1989 SCW 2240] State of Haryana v. Brij Lal Mittal and Others wherein it is held that even if there is a bald statement that the accused persons were in charge of and responsible for the conduct of the company itself is not sufficient to proceed against the directors of the company. However, there is no quarrel as far as the principles enunciated by Their Lordships of the Supreme Court in the judgments referred to above. 4. The learned advocate for the respondent submitted that the averments in the complaint clearly establish that these petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the 1st accused was bound to pay under the law to the Dept., thus the Accused Nos. 13 14 have actually connived and colluded with the Accused Nos. 2 to 12 to defraud the Department to the extent of ₹ 1,20,48,021/- only. In Para 5(a) it is also alleged that using the above mentioned modus operandi, the A-1 with the supervision and overall control of the A-2 to 14 cleared 10,47,654 cigarette packets (20 s) containing 20,953 cigarettes calculated on the basis of 1.6% (as determined based on the test check) of the total clearance from Dec. 1985 to 6-9-1986. In Para 5(c) it is alleged that the Accused No. 1 and Accused Nos. 2 to 14 by their guidance, control and supervision contravened the provisions relating to payment of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany cannot be accepted. He also submitted that these allegations are made only to satisfy the requirement of S. 9AA without placing any materials before the Court. From the reading of the complaint, it is clear that the allegations are in respect of evasion of Central Excise. 6. According to the learned counsel for the respondent, it cannot be done without the active connivance of the Chairman and other directors, by the only Accused Nos. 13 14. Under those circumstances, he submitted that it is clear that with the due knowledge and also under the direct supervision of these petitioners, the provisions of law were violated. Therefore, the allegations contained in the complaint totally constitute the offence against these petitioners a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons contained in the said complaint, this Court has come to the conclusion that the S. 9AA has to be construed strictly. 9. Proviso to S. 9AA also clearly gives the defence which is available to the accused persons. At this stage, the Court has to consider the case only on the basis of the allegations contained in the complaint which are elaborately mentioned above. Therefore, it can be inferred that each case will have to be decided on its merits depending on the allegations made in the complaint. No hard and fast rule can be laid as far as this aspect is concerned. It is also difficult to hold that these allegations are made only to prosecute these petitioners. The violation of the provisions of law in this case is such, as pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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