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TMI Blog2007 (1) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... as since remained pending here for all these 12 years, we are not inclined to dismiss this writ petition on the ground of such alternative remedy available to the petitioner particularly when this writ petition was admitted after hearing both the parties on 16.5.2002. Therefore, we heard the writ petition at length on merits. 3 . Mr. N.K. Maloo, learned counsel appearing for the petitioner submitted that while upholding the order of the Adjudicating Authority, the Tribunal, dismissing the appeal of the assessee on 4.5.94 was not having the benefit of an order dated 28.6.1995 passed by the learned court of Special Judicial Magistrate, Economic Offences (Revenue), Jaipur wherein on a criminal complaint filed by the Superintendent, Central Excise Department, against the partners of the assessee firm M/s. Bhagwati Metals on the same set of facts and evidence as was available before the Adjudicating Authority and the CEGAT held on merits that no case of clandestine removal of goods was made out against the assessee firm and, therefore, the partners of the assessee firm Sh. Suresh Kumar Bajaj and Sh. Ashok Kumar Bajaj were not liable to be prosecuted and thus the court acquitted them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Learned counsel for the petitioner, Mr. Maloo, relying on Sec.14 of the Act which gives power to summon persons to give evidence and produce documents in inquiries under this Act to the Central Excise Authorities, urged that in the present case, the Adjudicating Authority never bothered to even allow opportunity of cross-examination of Mr. Kapil Gupta, Manager of the assessee firm on the alleged confessional statement of whom the demand in question was raised by the Adjudicating Authority though such confessional statement stood retracted and withdrawn by the said Manager Mr. Kapil Gupta on the earliest available opportunity on 22.4.1988 vide Annex.4. The Adjudicating Authority according to him also failed to exercise his powers under Sec.14 of the Act to summon witnesses or alleged purchasers to whom the goods in question were alleged to have been sold by the assessee firm on the basis of 12 kacha slips and thus in the absence of any such witnesses, the assessee could not be said to have removed the goods and sold them in a clandestine manner to such purchasers. Therefore, the demand in question was illegal and unsustainable. 8 . Per contra, Mr. Kamlakar Sharma appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case." "41.We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this court in a large number of decisions points out that the same would depend upon other factors as well. See e.g. Krishnakali Tea Estate V. Akhil Bharatiya Chah Mazdoor Sangh [(2004) 8 SCC 200] and Manager, Reserve Bank of India v. S. Mani [(2005) 5 SCC 100]. Each case is, therefore, required to be considered on its own facts." The Hon'ble Supreme Court then held in para 42 and 45 as under : "42. It is equally well settled that the power of judicial review would not be refused to be exercised by the High Court, although despite it it would be lawful to do so. In Manager, Reserve Bank of India this Court observed: "39. The findings of the learned Tribunal, as noticed hereinbefore, are wholly perverse. It apparently posed unto itself wrong questions. It placed onus of proof wrongly upon the appellant. Its decision is based upon irrelevant factors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. One need not multiply the authorities on this point and the position of law seems to be clear that while proceedings by Adjudicating Authorities in quasi judicial assessment powers conferred under the Act are independent and can be carried on simultaneously but at the same time the parallel proceedings or even subsequent proceedings initiated and drawn in courts of law of competent jurisdiction, be it a criminal court or a civil court, is based on the same set of facts and evidences, the findings of the court of law of competent jurisdiction cannot be said to be irrelevant altogether and cannot be brushed aside or ignored by the Adjudicating Authorities. 15 . The question further remains as to what should be the course of action when the proceedings before the Adjudicating Authorities have terminated finally and contrary findings come from the courts of law, criminal or civil, at a later point of time. 16. In our considered opinion, in such circumstances, the matter deserves to be remanded back to the Tribunal who decided first in point of time to reconsider the matter afresh in the light of subsequent findings by the courts of law of competent jurisdiction on the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-examined nor the statements of Shyam Lal, Driver, Girdhari lal, Hanuman Das, Kapil and Ashok Bajaj were proved in evidence before the court. If the prosecution by the Central Excise Authorities on the same set of evidence was conducted in such a slip shod manner and the departmental authorities could not secure conviction on the said evidence, it is highly doubtful whether the same evidence could result in demand of Excise Duty and penalty from the assessee because indisputably the burden of proof even in taxing statute lies upon the revenue authorities to establish not only the clandestine removal of goods for imposition of excise duty but also guilty animus on the part of the assessee, before before penalty could be imposed on the assessee. We do not find any such exercise done at the end of the Adjudicating Authorities or the Central Excise Tribunal, therefore, the findings of the Tribunal in the adjudication side seem to stare in the face, particularly in the light of findings returned by a court of law of competent jurisdiction. For these reasons, we consider it appropriate to remand the case back to the Tribunal for fresh consideration. 20 . Therefore, without expressing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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