TaxTMI 
TaxTMI 
1993 (8) TMI 81
X X X X Extracts X X X X
X X X X Extracts X X X X
....ss of the firm. The audit party during its visit to the factory of accused No. 1 (the present petitioner) in the month of August and November, 1983, noticed that its partners accused respondents Nos. 1 to 7 were recovering additional amounts shown as distribution charges and levies from their dealers over and above the control price and they were not paying any Central Excise duty on those additional charges. The Range Officer, Jammu created certain demands of excise duty for the period from September 1, 1981 to March 31, 1983. The partners of the said firm-accused No. 1, however, stopped this practice of charging additional amounts after 1983. On its next visit, the headquarters audit-party in August, 1985, detected that these accused had ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cord, a complaint dated November 17, 1986 was filed by the Assistant Collector (Audit), Central Excise Collectorate, Chandigarh, for offence under Section 9 of the Act. 2. The learned Chief Judicial Magistrate vide order dated October 13, 1987, summoned the accused-petitioners for November 26, 1987, but notice was not issued for failure to file process fee, et cetera. Thereafter, on November 26, 1987, notice was ordered to be issued to the accused-respondents for January 7, 1988. The petitioner then got the orders of summoning quashed in Criminal Writ Petition No. 426 vide order dated July 28, 1989, passed by S.D. Bajaj, J. of this Court (as he then was), on the ground of non-application of mind. 3. Thereafter, the learned Chief Judic....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... stated that the respondents had produced incomplete records and had deliberately avoided to supply the records showing break-up of distribution charges, which are required to be included in the assessable value. It was also maintained that the Chief Judicial Magistrate had summoned the petitioner to face trial for offence under Section 9 of the 1944 Act after due application of mind. 5. I have heard the learned counsel for the parties, besides perusing the record. 6. On the point of territorial jurisdiction of the Courts at Chandigarh to take cognizance of the offence under Section 9 of the Act, it transpires that at this stage, the averment in the complaint have to be considered. The perusal of the complaint, Annexure P-1 clearly sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of the concerned authorities. 8. Mr. Sibal further contended on the basis of the observations of the Division Bench of Allahabad High Court in Hindustan Safety Glass Works Ltd. v. Assistant Collector, Central Excise, Allahabad, 1985 (21) E.L.T. 38 (All.) that the complaint does not disclose any offence as the documents required to be produced have no relevance to the inquiry involved, but it is an attempt to collect material by wholesale production of documents during a fishing inquiry. No doubt, the Allahabad High Court had set aside the summons for production of wholesale documents by holding that the Collector cannot make fishing inquiry but should have summoned the relevant record only, yet all the same in the case in hand, thes....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... rise to a fresh cause of action. Thus, the production of these documents much after the filing of the complaint is of no consequence to absolve the petitioner or other accused of the offence under Section 9(1)(c) of the Act having been committed by them before the filing of the complaint. The factum that these documents were returned to the petitioner on 30-3-1990 by the Assistant Collector (Audit) is also of no consequence. 10. Lastly, Mr. Sibal contended that the learned Chief Judicial Magistrate had failed to apply its mind to the facts and circumstances of the case before summoning the accused respondent to face trial for offence under Section 9 of the Act. There is considerable force in this contention as the perusal of para 3 of t....