2017 (8) TMI 824

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..... 3. Brief facts necessary for disposal of this petition are that petitioners' company is manufacturer of Yeast and sold the Yeast to all part of the country and petitioner No. 2 is presently Vice-President of the company, the petitioner No. 1. 4. A complaint was filed in the Court of Special Chief Judicial Magistrate, (Economic Offences), Lucknow with the allegations that the petitioners have not determined the liability towards excise duty of excisable goods correctly. They have sold and transferred the goods from their factory to depots all over the country and in that process they wilfully and deliberately suppressed material information and evaded the payment of excise duty to the tune of Rs. 81,66,094/-. Thus the complaint....

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....ervice Tax Appellate Tribunal, West Zone Bench, Mumbai dated 20-12-2005, whereby the order passed by the Commissioner, Central Excise, Lucknow imposing penalty has been set aside. The relevant portion of the judgment of Tribunal may be extracted as below : "4. Having heard, perused the records and the case laws, we agree with the appellants contention that there is no legal basis for adopting the highest price prevailing at the depot for determining the assessable value in respect of clearances effected to the depot. The order of the Commissioner holding that the price declared in the price declaration was a tentative price and that appellants ought to have discharged duty based on the actual realization is also contrary to the clarif....

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....olding the petitioners liable for valuation of the provisions of the Act and also to pay penalty. 10. Learned counsel for the petitioners citing G.L. Didwania v. Income Tax Officer - 1999 (108) E.L.T. 16 (S.C.) has argued that when the order of Commissioner, Central Excise, Lucknow has been set aside by the Tribunal, prosecution of petitioners is also not sustainable and, therefore, it should not be quashed. The relevant para of above case law may be extracted as below : "In the instant case, the crux of the matter is attracted and whether the prosecution can be sustained in view of the order passed by the Tribunal. As noted above, the assessing authority held that the appellant-assessee made a false statement in respect of income of....