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TMI Blog2002 (4) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... le 226 of the Central Excise Rules, 1944. The test result of two samples of yarn drawn from the 131 seized cases revealed that goods packed inside were not the same as declared by party on the top of the seized case, inasmuch as, that while the said goods were declared to be 2/40s PV 48/52 blended yarn, the goods were actually found to be of single ply having P/V blend of 13.1/86.3 and 12.3/87.1. 3.A notice to show cause was served upon by the Collector, Central Excise, Jaipur on Feb. 28, 1983 calling upon the company as to why a penalty be not imposed on it for the alleged violation of the provisions of the Central Excises and Salt Act, 1944 (hereinafter to be referred as 'the Act') and the Rules framed thereunder. Thereafter, a departmental proceeding was initiated by the Collector, Central Excise, Jaipur. In the departmental proceeding, the Collector held that the seized 131 cases were of excess goods produced but not accounted for in the statutory RGI register and the plea of the company that the goods were duty paid and were received back from the parties was not sustainable. Consequently, the Collector held that there was contravention of Rule 9(1), 52A and 53 read with R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th fine and in other case, with imprisonment for a term which may extend to three years with fine or with both. That allegations made in the complaint do make out the aforesaid offences is not in dispute. The first contention of the learned Counsel for the petitioner is based on the judgment of the Appellate Tribunal in appeal filed under Section 35B of the Act against the order of the Collector, Central Excise, Jaipur dated 6-7-1984. It is no doubt true that the Appellate Tribunal has recorded a finding that 131 cases of yarn which were found in the premises of the company were cleared by the company on payment of duty and were returned to the company by customers for some defect. This finding has been recorded on the basis of some correspondence, etc., and because there was no evidence or allegation that the company had made a duplicate numbering of cases of yarn. It is noteworthy that in the departmental proceedings, the matter was decided on the basis of some correspondence without recording any evidence. The question still remains as to whether on the basis of the finding of the Appellate Tribunal, the criminal proceedings must be dropped and quashed. 7.The learned Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the criminal court during the pendency of such proceedings on the Revenue side would amount to prosecuting on uncertain facts which cannot even be countenanced under our system of administration of justice. Even to allow that complaint pending in the court below awaiting the decision in the appeals, revision, etc., if any, filed and pending would, according to me, amount to an abuse of the process of the court." 8.The aforesaid judgments no doubt support the contention made by the learned Counsel for the petitioner. But, a deep probe in those judgments would show that the prosecution of the accused persons were made on the basis of the finding recorded by the Income-tax Officer which stood set aside by the Appellate or Revisional Tribunals. The reason for quashing the proceedings was based on the ground that after the finding of the I.T.O. stood reversed by the Appellate or Revisional Tribunal, the basis of the prosecution also disappeared. However, in the instant case, the prosecution of the accused persons is based on the search/physical verification of the goods, lying in the factory premises of the company, made by the Anti-Evasion Staff where excisable goods were store ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the proceedings under the Act that he has not deliberately made any false statement or that he has not fabricated any material evidence, the conviction of such person should invariably follow in the criminal court. The High Court of Punjab and Haryana has correctly applied the rule regarding the maintainability of a prosecution in such circumstances in Telu Ram Raungi Ram v. ITO (1984) 145 ITR 111." (emphasis provided) 10.Sections 40 to 44 of the Evidence Act deal with relevancy of the judgments of courts of justice. These provisions do not empower a criminal court to treat as res judicata the findings of a civil court on a given point. Only judgments in rem as defined in Section 41 of the Evidence Act have a binding effect on criminal courts. A finding on certain facts by a civil court in an action in personam is not relevant in criminal cases to give a finding on the same facts. The criminal court has to arrive at his own independent findings on the basis of the evidence adduced before it and there is nothing in law to make a judgment of civil court conclusive. In Emperor v. Nazir Ahmed (AIR 1945 Privy Council 18), it has been held that findings in civil proceeding are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the Manager of the Company, as well as, Directors of the Company, including the company also under Section 7/16 of the Act. The High Court quashed the proceedings in exercise of powers under Section 482 Cr. P.C. The matter was taken to the Supreme Court by the Municipal Corporation of Delhi. The Supreme Court dismissed the contention of the Municipal Corporation against the Directors with the following observations :- "So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused 4 to 7) has been made out ex facie on the allegations mad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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