9911796707
TMI Blog2014 (6) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... punishment/sentence would depend on the duty leviable on the seized articles. It is pertinent to note that in the present case, the prosecuting agency has not specifically stated the quantum of duty which was evaded by the accused persons. It contemplates that in the case of an offence relating to any excisable goods, the duty leviable thereon under this Act exceeds one lakh of rupees, with imprisonment for term which may extend to seven years and with fine. It therefore, follows that the prosecuting agency has to specifically state the duty leviable on the goods which is the subject of Section 9(1)(bb) and (bbb) - In the present case, the same has not been considered by the learned Magistrate or the revisional Court. The very fact that rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. The learned Magistrate, after recording the verification and evidence of the witnesses, by an order dated 31-7-2007, directed that the charge be framed against the accused. Accordingly, charge was framed against the accused. 4. By a judgment and order dated 21-3-2007, the present petitioner had been convicted vide Section 241 of Cr.P.C. of an offence under Section 9(1)(bbb) punishable under Section 9(1)(ii) of the Central Excises and Salt Act, 1944. He shall pay fine of ₹ 30,000/- or he shall suffer Simple Imprisonment for a period of one month. 5. Being aggrieved by the said judgment and order, the original complainant filed Revision Application No. 99 of 2010 before the Sessions Court seeking the relief of enh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise duty and excise was not paid on the said goods although it was the subject matter of the said Act. The said goods were not accounted for. Hence, according to the prosecution, the accused had evaded payment of Central Excise duty. Hence, a complaint was filed before the Chief Judicial Magistrate, Thane. 8. It is a matter of record that the vehicle carrying the Resistors was intercepted on 8-5-1978. The said articles were seized on or about 18/19th May, 1978. The investigation was almost completed by December, 1978. The complaint was filed on or about 1-12-1982, i.e., almost four years after the completion of the investigation. The case was adjourned from time-to-time. The petitioner was not instrumental in protracting the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27-7-2006. Hence, the trial Court had proceeded with the trial and delivered the judgment on 31-1-2007 and sentenced the accused to pay fine. The complainant had challenged the order in revision on the ground of inadequacy of sentence. 12. The judgment and order passed by the learned Magistrate was an appealable order and, therefore, revision under Section 401(4) of the Code of Criminal Procedure, 1973 would not be maintainable. Section 401(4) contemplates as follows :- "(4) Where under this Code an appeal lies and o appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed." The very words "no proceeding by way of revision shall be entertained" are sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich may extend to seven years and with fine. It therefore, follows that the prosecuting agency has to specifically state the duty leviable on the goods which is the subject of Section 9(1)(bb) and (bbb). In the present case, the same has not been considered by the learned Magistrate or the revisional Court. 14. It is pertinent to note that in the complaint as well as the substantive evidence, the complainant has stated the value of the goods which was seized, but had not specifically calculated the leviable tax, i.e., the excise duty on the said goods. 15. There was no plausible explanation for the inordinate delay in filing the complaint. The trial was protracted at the behest of the prosecution. The statute mandates filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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