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TMI Blog1998 (7) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Electricals" located at door No. 104, Audiappa Naicken Street, Madras-1, they seized the manufacturing register, delivery challan book, production and clearance registers also 635 coils of electric wires and cables under a mahazar exhibit P-7 from the factory and 33 documents and 601 coils of electric wires and cables bearing the brand name "Micro" under mahazar Exhibit P-62, as per which during the year 1980-81, the duty payable by the accused was Rs. 2,05,332.85 and that for the period between 1-4-1981 and 22-2-1982 the duty payable by him was Rs. 84,624.98, since during 1980-81 he had manufactured and cleared the goods to the value of Rs. 25,22,362.50 and that the exemption of the total duty payable by him for the year 1980-81 was Rs. 2,05,332.85 and by evading to pay the same has contravened Section 9(1)(b) of the Central Excises and Salt Act, 1944 punishable under Section 9(1)(b)(ii) of the said Act; Secondly, between 1-4-1981 and 22-2-1982 the total sales effected by the accused was Rs. 10,31,860.71. Having made genuine purchase to the tune of Rs. 2,25,908.55 and in respect of the balance the total duty payable by him was Rs. 84,624.98 which he had evaded thereby contrav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 and 20 documents have been marked as Exhibits D-1 to D-20. The lower court in consideration of the above evidence placed by both sides and in further consideration of the facts and circumstances of the case in the context of law has ultimately arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubts and would order the acquittal of the accused. It is only challenging the said acquittal judgment registered by the trial court, the Assistant Collector, Central Excise, Madras has come forward to prefer the above appeal as per its memorandum of appeal on grounds such as (i) that the learned Magistrate has misconstrued the import of the decision reported in A.R. Antulay v. R.S. Nayar [1984 S.C.C. that the learned Magistrate had erred in its thinking(Crl.) 277 at 285]; (ii) that the Rules 4, 5 and 37(a) of the Central Excises and Salt Rules, 1944 are relevant and proper for action to be taken by way of criminal proceedings in court; (iii) that the learned Magistrate failed to note that the complaint filed by the Assistant Collector is perfectly in order according to the provisions of Rule 207 of the Central Excises and Salt Rules, 1944 and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused had given forged gate passes and have supplied bogus gate passes to the Tamilnadu Electricity Board to make it appear that the taxes had already been paid but the gate passes index would show the quantum and hence Exhibits P-73 to P-173 gate passes recovery are important pieces of evidence. The learned Counsel would point out that the court below has held points 1 to 4 against the accused admitting the contravention by the accused, but holding point No. 5 against the prosecution stating thereby that the Assistant Collector of Central Excise was not competent to prosecute the offence has ordered acquittal of the accused. He would urge that if the statute prescribes that a particular person could only file the complaint, that person could be taken as the competent person to register the complaint but under Central Excises and Salt Act no specific person having been named and the Act no where stating as to who should file the complaint, Generally it should be taken that any public servant like the Assistant Collector in this case, is competent to file the complaint. The learned Counsel would quote Rule 207 of the Central Excise Rules, 1944 which says : Charge by whom to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd when the Act is silent, the Rules cannot say something. Under Section 2B all the Central Board appoints the officers with certain appointment to carry on with and that the sanction is absolutely necessary in such event, citing a judgment reported in M/s. Ranadey Micronutrients etc. v. Collector of Central Excise (AIR 1997 Supreme Court 69), wherein the learned Counsel would point out that under Section 37B the issuance by the Board orders, instructions and directions to Central Excise Officers, such orders, instructions and directions are to be issued when the Board considers it necessary or expedient to do so to achieve uniformity in classification of excisable goods and the levy of excise duty thereon. Central Excise Officers are obliged to observe and follow these orders, instructions and directions and further would point out that circulars have been issued by the Board in the said case in consultation with the Chief and Deputy Chief Chemist and in the latter case, the Ministry of Agriculture. Citing yet another decision reported in Poulose and Mathen v. Collector of Central Excise [1997 (90) E.L.T. 264 (S.C.)] the learned Counsel would lay emphasis in the contents of Para 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eline 40 reads : "Under Section 9 of the Central Excises and Salt Act, 1944 an offender is liable to be prosecuted and penalised by the Court of law. Detailed guidelines for launching prosecutions have been issued vide Boards F.No. 208/6-M/77-CX. 6, dated 26th July, 1980. But it has been observed that there is considerable time lag between the date on which in offence case if adjudicated and the date on which the prosecution is sanctioned and the complaint filed in the court of law. To overcome this time lag, the issue has been examined in consultation with the Director General of Revenue Intelligence and it has been decided that where the adjudicating authority is Collector or the Additional Collector, he would pass an order sanctioning prosecution against those accused against whom there is evidence to initiate criminal proceedings. In cases where the adjudicating authority is Deputy Collector/Assistant Collector, the adjudication authority should send a proposal within a fortnight after adjudication to the Collector". 7.The learned senior Counsel would further argue that it is not open for the Revenue to advance arguments and that Rule 4 cannot override the statute, that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribes the person competent to file the complaint, only such persons can file the complaint and would give credence to the contentions of the Counsel for the respondent that the complaint filed by the Assistant Collector, Central Excise is not competent to as the complainant has not been examined and without evidence that the Collector has delegated the powers to file the complaint under the Central Excise Act, when such facilities are available for officers not less than the rank of Inspectors under the Customs Act. Further pointing out that no delegation of authority under Section 36(a) of the Act has been made to the Assistant Collector by the competent person has been filed and rules 4 and 5 also empowered only delegation by Collector of Central Excise but even such powers have not been conferred on the Assistant Collector Central Excise, who is the complainant, he is not competent to file the complaint. Since the complaint is silent as to the authority under which this complaint has been filed by the Assistant Collector, the evidence is also silent on this aspect. The Assistant Collector, who filed this complaint has also not been examined in the trial court and hence the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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