TaxTMI 
TaxTMI 
TaxTMI 
2001 (1) TMI 97
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....d Company engaged in the business of manufacture of goods like cosmetics at the relevant time. The opponent No. 2 Shri Abhaykumar Jyotisinh, office of the Assistant Collector of Central Excise and Customs, Surat, had filed a Criminal Complaint No. 4061/92 before the Court of learned Chief Judicial Magistrate, Navsari, against the applicants under the provisions of Sec. 9 of the Central Excise Act, 1944 (previously known as "The Central Excises and Salt Act, 1944"). The basis for filing this complaint against the applicant is an order dated 16-3-1990 passed by the Collector of Central Excise, Baroda, by which it was held that certain amount of duty was not paid by applicant - Lakme Limited. The said order was passed on the basis of a show-cause-notice No. V(14F) 15-1/OA/86, dated 9-6-1986. The subject matter involved in the said show-cause-notice on which the order was passed by the Collector, Baroda, and the subject matter of the complaint filed against the applicant by opponent No. 2 herein was the similar. The petitioners stated that the Central Excise Department had issued a notice dated 9-6-1986 for alleged evasion of excise duty for which party claiming from April 1984 to Dece....
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.... this Court have consistently held that when appeal filed before the appellate forum prescribed under the Central Excise Act, or as the case may be, under the Customs Act, was admitted and the same was pending, criminal case on the same subject matter should not be allowed to go on since the possibility of appellant succeeding in the appeal could not be ruled out and if the appeal thus succeeds, entire basis of criminal case would disappear. In support of the above submissions, he has relied upon the judgment of the Hon'ble Supreme Court in the case of G.L. Didwania v. Income Tax Officer reported in 1999 (108) E.L.T. 16 (S.C.). In para 3 and 4 the Supreme Court has observed as under : "Mr. R.K. Jain, learned Senior Counsel, submits that the averments in the complaint would clearly show that the prosecution was sought to be launched on the basis that the appellant wrongly and falsely declared that the income of Young India and Transport Company does not belong to him and that he made a false verification to that effect and the income of Young India and Transport Company does belong to him and falling to include the said income of Young India and Transport Company in his income amou....
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....ed of." 6.3Learned counsel for the petitioners has also relied upon the judgment of this Court in the case of Shri Digvijay Cement Co. Ltd. v. State of Gujarat reported in 1991 (53) E.L.T. 292 (Guj.). In that case Collector levied duty and penalty upon the manufacturer. An appeal was preferred by assessee before the Customs, Excise and Gold (Control) Appellate Tribunal. In the appeal and in the stay application the Tribunal has passed an order directing the petitioner to deposit 25% of the duty adjudged as due with the concerned Collector and also directing the petitioner to furnish to the satisfaction of the Collector a Bank guarantee for the balance amount and on that condition the penalty imposed was stayed and also dispensed with its pre-deposit pending and hearing of the appeal. The prosecution was launched with regard to order passed by the Collector. This Court (Coram : B.S. Kapadia, J.) in para 9 observed as under : "Now, when the matter is pending before the Tribunal the possibility of allowing the appeal cannot be ruled out; and if that is so, possibly, the petitioner cannot be said to have committed any offence and it is in the interest of justice to stay the proceedin....
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.... thus become non-est by virtue of the order of the Central Excise Tribunal, the petitioners cannot be prosecuted and punished for offence under Section 9 of the Central Excises and Salt Act, 1944." 6.6. It may be noted that, in this case only proceedings are pending and Collector has not finally adjudicated and therefore to that extent I can only stay the criminal proceeding but the criminal proceedings cannot be quashed at this stage. 7.Shri Akshay Mehta, learned Senior Standing Counsel for the Union of India has tried to support the order of the learned Magistrate in this behalf. Shri A.J. Desai, learned APP for the State has also tried to support the case of the prosecution. 8.Shri Akshay Mehta, learned Counsel for the Revenue has relied upon in the case of K. Sadasivam v. Enforcement Officer, Enforcement Dte., Madras reported in 1999 (105) E.L.T. 269 (Mad.). In para 15 the Court observed as under : "However it cannot be denied that the decision in the appeal before the FERA Board in Appeal No. 171 of 1993 will have a bearing in the Criminal Case in C.C. No. 881/93. Even I can say that the judgment of the FERA Board in the appeal that will be preferred by the petitioner/accu....