TaxTMI 
TaxTMI 
2015 (5) TMI 912
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....herefrom. 2. A perusal of the complaint and this petition, shows that the petitioners are partners in the aforesaid M/s H. L. Textile Mills, which is engaged in the manufacturing of liner fabric/nylon duck of polyprolene/nylone/polyster fabrics, which products, as per the complaint filed by the Deputy Commissioner, Central Excise, fall under the Sub- Heading 5911.90 of the Schedule to the Central Excise Rules, 1985. It is alleged in the complaint that the petitioners and their firm, without filing registration under Rule 174 of the Central Excise Rules, 1944 and without obtaining Central Excise Registration Certificate, were engaging in the manufacturing of the aforesaid products and in the clandestine removal thereof, without observing any of the central excise formalities and without payment of Central Excise Duty leviable thereon and all the accused, being the firm and its partners, actively participated in the day to day business of the firm and as such, are all liable to be prosecuted. It needs to be noted that though the complaint was filed against both the present petitioners and a son of petitioner no.2, as also the firm in which the petitioners are partners, the p....
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....; case, would not be applicable as the products in question in that case were belting ducks, gray canvas cloth and gray nylon belting fabrics, all of which were used for industrial purposes and as such satisfied the requirement of note 7 of Chapter 59. [Note:-Though there does seem to be some error, with regard to the terms, "industrial purpose" and "industrial use" in the order of the CEGAT, however, that would not be something to be gone into by this Court, as would be seen further.] 7. Mr. Sharma, learned counsel for the petitioners, further submitted that the aforesaid decision of the CEGAT was challenged by the respondent before the Hon'ble Supreme Court and the Civil Appeal (CA No.6949 of 2001) was dismissed by their Lordships on 25.10.2007, in the light of an earlier judgment of the Apex Court in Commissioner of Central Excise, Nagpur vs. Simplex Mills Co. Ltd. (2005), which was decided against the Revenue. It is to be noted here that though in the judgment of the Tribunal, it has been stated that the judgment in the Simplex Mills' case, reported as 1993 (49) ECR (47) (T) had been challenged by the Company but the appeal had been dismissed by the Hon'ble....
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....nitiated, are independent of each other and can be proceeded with as such, simultaneously. The reply also places reliance upon a judgment of the Hon'ble Supreme Court in Assistant Collector of Customs, Bombay and another vs. L. R. Melwani and another (AIR) 1970 SC 962, to plead that criminal proceedings before the Court are not barred because of any adjudication by the Collector. 9. The reply of the respondent further states that since the charge has already been framed against the petitioners and in fact, the statements under Section 313 Cr. P.C. have also been recorded and defence evidence had also been led, in other words, the trial has virtually concluded, the complaint should not be quashed at this stage, nor should the subsequent orders of the learned CJM, Amritsar, dismissing the applications of the petitioners to be discharged, dated 17.08.2006 and 27.10.2009, be set aside. 10. Having heard learned counsel for the parties and having gone through the pleadings, in my opinion, this petition deserves to be allowed and the complaint filed by the respondent, deserves to be quashed, thereby setting aside all subsequent orders passed, arising from the said complaint. ....
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.... to registration is contained in Section 6 of the Act of 1944 and Rule 174 of the Rules framed thereunder. Section 6 of the Act reads as under:- "6. Registration of certain persons.- Any prescribed person who is engaged ina) the production or manufacture or any process of production or manufacture of any specified goods included in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), or b) the wholesale purchase or sale (whether on his own account or as a broker or commission agent) or the storage of any specified goods included in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), shall get himself registered with the proper officer in such manner as may be prescribed." Rule 174 further lays down the procedure for registration in case of those persons who are engaged in the production/manufacture etc. of excisable goods. It is also necessary to state here the provisions of Sections 9, 9A and 9AA of the Central Excise Act, 1944, in which the offences and penalties leviable for contravention of the provisions given therein are la....
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....ch imprisonment shall not be for a term of less than six months. 3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than six months, namely:- i) the fact that the accused has been convicted for the first time for an offence under this Act; ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods in relation to such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; iii) the fact that the accused was not principal offender and was acting merely as a carrier of goods or otherwise was a secondary party in the commission of the offence; iv) the age of the accused. 9A. Certain offences to be non-cognisable.- 1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), offences under section 9 shall be deemed to be non-cognisable within the meaning of that Code. 2) Any offence under this Chapter may, either before or after the institu....
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....h an irregularity, and there is any fine imponable for the same, the respondents would be at liberty to impose the same, after following due procedure. 14. A perusal of the last order impugned, i.e. the order of the learned CJM, Amritsar, dated 27.10.2009, dismissing the application for discharging the petitioners, after the issue had been adjudicated in their favour by the Hon'ble Supreme Court, also shows that no pleading to the above effect (that the proceedings would still be required to be continued because of non-registration) was raised by the Revenue and the only reason given for dismissing the application, by the learned trial Court, was that it had no power to recall its order framing a charge, once an earlier application seeking discharge had been passed by its predecessor, even though that order was passed before the judgment of the Supreme Court was delivered. 15. In fact, even before this Court, learned counsel for the Revenue could not refute that with the basis for the criminal complaint having been actually removed, with the Apex Court having held that the goods manufactured by the firm of the petitioners are not exigible to Central Excise, the criminal c....