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TMI Blog2007 (11) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 19-9-95, the finding arrived at by CEGAT has attained finality. The order of the CEGAT exonerating the accused company is thus clearly on merits. In view of the above discussion, the complaint under Section 9 of the Central Excise and Salt Act, 1944 read with Sections 193, 192 and 120-B of the IPC (Annexure G to the petition) and the proceedings emanating out of the said complaint are quashed for the reason the departmental proceedings has resulted in the petitioners being exonerated on merits and the criminal prosecution is based on same set of facts and evidence. - 1845-1848 of 2005 - - - Dated:- 6-11-2007 - Pradeep Nandrajog, J. [Order]. - Petition under Section 482 of the Code of Criminal Procedure, 1973 prays f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heets, bill book, chemical analysis report register, production and dispatch books, weigh bridge register, internal gate passes, dispatch slips and daily dispatch report. 4. Taking cognizance of the said complaint, the learned ACMM summoned the accused persons to face trial for an offence under Section 9 of the Central Excise Act, 1944 read with Sections 193, 192 and 120-B of the IPC. 5. In addition to the afore-noted complaint, the Central Excise Department also initiated adjudication proceedings against the accused company. On the basis of same set of facts/allegations as canvassed in the criminal complaint, a show cause notice dated 8-4-88 was issued to the accused company. In the said show cause notice, reliance was again placed upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved which charge we have already set aside." 9. Pursuant to the order dated 19-9-95 passed by the CEGAT, vide order dated 5-1-96 the Assistant Commissioner, Central Excise directed that the penalty deposited by the accused company in terms of adjudication order dated 30-3-90 be returned to the accused company. 10. In view of the order passed by the CEGAT exonerating the accused company, accused persons filed an application for discharge. Noting the judgments of the Supreme Court in the decisions reported as Asstt. Collector of Customs v. L.R. Malwani, 1999 (110) E.L.T. 317 (S.C.) and Santram Paper Mills v. Collector of Central Excise, 1997 (96) E.L.T. 19 (S.C.) and the judgment of the Andhra Pradesh High Court in the decision reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r exists for the reason adjudication proceedings and criminal prosecution are based on same set of facts/allegations. 13. On the other hand, learned Counsel for the Central Excise Department urges that the mere fact that the petitioner has been exonerated in the departmental or adjudicatory proceedings will not entitle him to escape prosecution in criminal proceedings which are independently maintainable. Reliance was placed upon the following judgments :- (i) Asstt. Collector of Customs v. L.R. Malwani, 1999 (110) E.L.T. 317 (S.C.) (ii) K. Neelakantha Rao v. State of Andhra Pradesh, 2000 (122) E.L.T.7 (iii) Santram Paper Mills v. Collector of Central Excise, 1997 (96) E.L.T. 19 (S.C.) 14. In view of the lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion proceedings are decided against a person who is facing prosecution as well and the Tribunal has also upheld the findings of the adjudicators/assessing authority, that would have no bearing on the criminal proceedings and the criminal proceedings are to be determined on its own merits in accordance with law, uninhibited by the findings of the Tribunal. It is because of the reason that in so far as criminal action is concerned, it has to be proved as per the strict standards fixed for criminal cases before the criminal court by producing necessary evidence. 4. In case of converse situation namely where the accused persons are exonerated by the competent authorities/Tribunal in adjudication proceedings, one will have to see the reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings is on merits holding that there is no contravention of the provisions of any Act." 16. In the decision Mohd. A.H. Jabiullah v A.K. Maurya and Ors., Crl. M.C. No. 1757/05 decided on 5-11-2007 with reference to the same issue it was held as under :- "13. Therefore, to ascertain the effect of the exoneration in the adjudication proceedings on the criminal proceedings, in a given case it has to be seen whether :- (i) The criminal prosecution is based on same set of facts/allegations and evidence which was before the adjudicating authority or not; and (ii) Whether exoneration by the adjudicating authority is on merits or not." 17. As already noted in para 5 above, both the proceedings i.e. adjudication and criminal are based upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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