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TMI Blog2006 (6) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ise duty, the factory premise was searched on 28.3.2006 and stock of the products was detained. No F.I.R. was lodged for the said offence, but the authorities of opposite party no.1 registered this case on own giving crime no.2 of 2006 under Section 4/9A/9AA/9 of the Central Excise Act, 1944 (hereinafter referred to as an ''Act') and section 420/467/468/471 Indian Penal Code. The applicant was also arrested and copy of arrest memo was served, which is Annexure No.1 to the affidavit. The applicant moved application for bail before the Sessions Judge, Meerut which was rejected on 15.5.2006. 3. The present bail application has been moved on the ground that applicant runs a factory for preparing the ayurvedic medicines. A licence has been issued in favour of T.V.C. Sky Shop Limited for manufacturing of Ayurvedic medicines through Surya Herbal Limited by the Director of Ayurvedic and Unani Services, U.P. Lucknow. Accordingly these herbal medicines were being manufactured for T.V.C. Sky Shop Ltd. As per the licence certain items have been approved by the Ayurvedic and Unani Director to be manufactured by the applicant including the above two. The photo copy of the licence is Annexur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a beauty or make up preparation and ''Daant Pari' is toiletries and disputes both of them to be Ayurvedic medicines. The Notification dated 1.3.2002 shows difference between paste and powder. A photo copy of the provisions of Chapter 33 of Tariff Act is Annexure No.8. The indications mentioned on the wrapper of both the preparations are very clear as detailed in para 18 and 19. In this connection reliance was also placed on the judgment of Hon'ble The Apex Court in 2006 (196) E.L.T. 3 (S.C.) Puma Ayurvedic Herbal (P) Ltd. V. Commissioner of Central Excise Nagpur . The notification dated 1.3.2002 has been amended by Notification dated 1.3.2006 but in that too there is no mention of tooth powder. The amended notification is Annexure No.11. 4. The next ground taken was that the applicant had a heart-attack in the year 2005 and his coronary angioplasty was done. The prescription of Escorts Hospital is Annexure No.12. On these grounds the petitioner has claimed his bail. 5. Counter affidavit has been filed on behalf of the opposite party no.1, stating that applicant's company is producing cosmetic goods and toilet preparations in the garb of ayurvedic medicines. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beautification and improvement of look and attractiveness of a person. ''Daant Pari' is also an item of common use for being used life long. This fact has been admitted by Dr. Punam Ashish, Senior Manager and Miss Archa Prasad, Deputy Manager. 6. The first point raised by the learned counsel for the opposite party is that the bail application is not maintainable. In my opinion, this argument is misconceived. Section 13 of the Act gives power to arrest any person whom he has reason to believe to be liable to punishment under this Act. Such arrested person is kept in judicial custody and who so ever be in judicial custody has a right to approach for bail. 7. The power of arrest under section 13 of the Act is confined to the offences in the Central Excise Act and not in other section. The offence under sections 420, 467, 468 and 471 IPC have also been added for which the Central Excise officers have no power to arrest. Admittedly, no FIR was lodged in this connection. The Affidavit and counter affidavit filed by both the parties and submissions made show that there are two points under dispute:- Firstly, the production was made on behalf of T.V.C. Sky Shop Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant has submitted that according to the Central Excise Department, these two items mentioned above, are covered under Chapter 33 of the Tariff Act and assessment of excise duty is to be made on the basis of M.R.P. under notification no.13/2002-C.E. (NT) dated 1.3.2002 issued under section 4A of the Central Excise Act,1944, where as according to the applicant it is Ayurvedic medicine and cannot be valued under section 4A of the Act. According to the applicant's case the duty on Ayurvedic medicine is payable under section 4 of the Act and same are classified under Chapter 30. Sri Ajay Singh, learned counsel for the Central Excise Department has made submissions otherwise. According to him the two preparations are cosmetic preparation primarily meant for beautification and improvement of look and attractiveness of a person. Further, according to him, a medicine is not an item of common use and a user will use it only for treatment of a particular ailment and will stop use after the ailment is cured. 9. In this connection, my attention was again drawn to Annexure No.5, the wrapper of ''Dant Pari ' and ''Roop Amruta ". On both these wrappers, where the name of manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffences of this Act compoundable either before or after the institution of prosecution. The provision of enquiry by summoning the person is also there under section 14 of the Act. In spite of existence of such provision, without ascertaining the facts, the officers of opposite party no.1 resorted to section 13 of the Act and arrested the applicant. The officers of opposite party no.1 also exceeded by taking steps under the provisions of Indian Penal Code as well. 15. In the present case the offence is non-cognizable and compoundable. There can be no chance of tampering of evidence or threat to complainant. There is also no chance of absconding also. So far as the liability of payment of tax is concerned, who so ever is liable cannot escape the same. 16. Considering this, I find it a fit case for bail. Let applicant Inder Setia be released on bail in Case Crime No. 2 of 2006 under Sections 4/9A/9AA/9 of the Central Excise Act 1944 and sections 420/467/468/471 IPC Commissionerate Central Excise Noida under police station Sector 20 Noida, on his furnishing a personal bond and two sureties, each in the like amount to the satisfaction of the concerned court. - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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