TaxTMI 
TaxTMI 
2011 (3) TMI 19
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....istrate, New Delhi (ACMM). 2. Respondent has alleged in the complaint that petitioner was proprietor of M/s Ahuja Battery Covers (for short hereinafter referred to as 'the firm'). On her instructions, cheque No. 135658 dated 13th May, 2005 for Rs. 20 lakhs drawn on State Bank of India, Mansarover Garden Branch, New Delhi was handed over to the respondent towards part discharge of Central Excise duty, jointly and severally due from the petitioner and her firm. On presentation, said cheque was returned dishonored by the banker of the petitioner for the reasons 'exceeds arrangements'. Since cheque amount was not paid by the petitioner within the statutory period as provided under the Act despite receipt of legal notice dated 12th July, 2005, ....
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....ence to them. Excise duty was quantified only on 2nd November, 2005. Thus, it is evident that neither any legally enforceable liability existed as on 6th May, 2005, when cheque in question was taken from the petitioner, nor it existed when the cheque was presented for payment. As per the learned counsel no offence under section 138/142 of the Act is made out against the petitioner for this reason. Reliance has been placed on K. Narayana Nayak Vs. M. Shivarama Shetty ILR 2008 Kar. 3635. 4. Per contra, learned counsel for the respondent has contended that the notice has already been framed against the petitioner by the Trial Court. Thus, petitioner can either be convicted or acquitted after the trial and the complaint cannot be quashed at th....
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....as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section," debt or other liability" means a legally enforceable debt or other liability." (emphasis supplied) 6. A perusal of aforesaid section clearly indicates that to attract the penal consequences under section 138 of t....
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....t in Krishna Janardhan Bhat v. Dattatraya G. Hegde AIR 2008 SC 1325, has held that an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. It was further held that a statutory presumption has an evidentiary value. The question as to whether the presumption stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the accused is not imperative. 8. In t....
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....2/- @ 2% of the duty (total duty Rs. 46,12,318/-) involved on the excisable goods collectively valued at Rs. 2,83,89,534/-cleared by them from 01.04.02 to 31.03.05, should not be demanded under section 11A(i) of the Central Excise Act, 1944 by invoking the extended period of five years, (as per table No. VI) (2) An amount of Rs. 22,00,000/- (Twenty two lacs only) deposited voluntarily by the party vide two cheques, referred in the foregoing paras, may not be appropriated towards realization of Central Excise duty on goods manufactured and cleared by them clandestinely under the provisions of Sec. 11A of Central Excise Act, 1944. (3) Penalty should not be imposed upon M/s. ABC under Rule 25 of Central Excise Rules 2002 read wit....