2016 (7) TMI 124

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....er prayer has been made to stay further proceedings of the aforesaid case. Heard Shri V.K. Upadhya, learned Senior Counsel assisted by Shri Ritvik Upadhya, learned counsel for the revisionists and Shri B.K. Singh Raghuvanshi, learned senior standing counsel appearing for the Department-opposite party no. 1 as well as the learned A.G.A. appearing for the opposite party no. 2. Sri Vinod Kumar Upadhya, learned Senior Counsel assisted by Sri Ritvik Upadhya, learned counsel for the revisionists submitted that the present complaint in the present form cannot go-on against the revisionists. The order dated 9.10.2015 passed by the concerned Magistrate is illegal. No ground exist to continue with the complaint. Seizure was made in the year 2007. T....

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.... following case laws: 1. Radheyshyam Kejriwal Vs. State of West Bengal in (2011) 3 Supreme Court Cases 581. Though 2011 Volume (266) ELT Page 294 (SC). 2. J.P. Tobacco Products Private Limited Vs. Assistant Collector of Central Excise (M.P.) reported in 2008 (229) ELT 325. On the other hand, learned A.G.A. as well as learned counsel for the Department-opposite party no. 1 submitted that the criminal proceeding and the adjudication proceeding both are independent proceedings and can be launched simultaneously. In the present matter, the adjudication proceeding has not been finally terminated in favour of the revisionists but the concerned authority was directed to pass a fresh order for fixing the liability of each and every individual ....

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....roceeding has not been finally terminated exonerating the revisionists from liability to pay the tax/fine etc. The Court concerned also observed that vide order dated 28.8.2015 the adjudicating authority had fixed separate liability of the revisionists. The order passed for de-novo proceeding to adjudicate the matter can also not be taken that adjudication proceeding has been ended in favour of the revisionists. Regarding maintainability of the criminal proceeding and the adjudication proceeding, Hon'ble Supreme Court in Radheyshyam Kejriwal case (supra) has clearly held that in case of exoneration on merits in such adjudication proceedings, whereby the allegations are found to be unsustainable at all and a person concerned is held inn....

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....r of confiscation would also not be in violation of fundamental right guaranteed under Article 20(2) of the Constitution of India. The criminal Court has to judge the case independently on the basis of evidence placed before it. In this case, the discharge application was moved before the concerned Magistrate on the ground that adjudication proceeding has come to an end. On perusal of the documents annexed with the memo of revision and also the reasoning given in the impugned order, it is evident that the revisionists have not been exonerated from the penalty/tax liability etc. but the case was remitted back for fresh decision for fixing liability of each and every individual separately after giving opportunity of hearing to the revisionis....