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2015 (10) TMI 2671 - HC - Central ExciseDelegation of powers - powers delegated to the Collector of Central Excise - offences punishable under Section 9 of the Central Excise Salt Act 1944 - omission of Rule 56A - the allegations against the accused were that in pursuance to the permission granted on 07/07/1983, the credit of ₹ 1,17,35,014/- was permissible, but instead, by making a dishonest and deliberate double entries of credit of the said amount, impermissible credit in the sum of ₹ 1,17,35,014/- was taken and thus an offence under the aforestated provisions were committed - effect of omission of Rule 56A on pending a complaint before the trial Court. Whether the prosecution can subsist after omission of Rule 56A without a saving clause? - whether Sections and 3 and 38A of the Act or Section 6 of the General Clauses Act would be able to save the situation? Held that: - While addressing the issue arising under Section 38A of the Act, it was observed that Section 38A operates in respect of amendment, repeal, supersession or rescinding of any rule, notification or order, but not in the eventuality of an omission. It was explained that omission and repeal are different things and omission does not amount to repeal. The Court also referred the dictionary meaning of 'rescind' and 'amend' and observed that the same are not synonymous with the word 'omit'. It was thus held that Section 38A of the Act would not save any obligation, liability etc. acquired, accrued or incurred under any rule, order or notification which has been omitted. Similar fact situation is prevalent in the present case and therefore on omission of the rule in absence of savings, the proceedings under Section 138A of the Act in question would not be saved. Similar is the fact situation in the present case. As indicated earlier, the relevant notification in this case also does not make any provision akin to Section 6 of the General Clauses Act. It also does not make any provision continuing the liabilities incurred under Rule 56A. Immediately on omission of Rule56A during the pendency of the complaint, it is deemed to have disappeared from the statute book and therefore it can no more be relied upon. Consequently, no prosecution initiated during the subsistence of Rule 56A can continue after its omission and therefore penal consequences flowing therefrom would cease. It therefore can be said that the act or omission on the part of the petitioner was not punishable on and after the date of ‘omission’ of Rule 56A and in view of above discussion, the introduction of Section 38A with specified savings would not come to the aid of the prosecution as the act which was not punishable on omission cannot be punishable by virtue of explanation to Section 38A. The trial Court failed to address the legal proposition in its true perspective. It is settled legal position that though at the time of considering the application for discharge, the Court is not obliged to appreciate the evidence, but certainly it is required to see the evidence with an object to find out as to whether the material justifies framing the charge and whether the charge, if framed on the basis of existing material, would be groundless or not? The endavour of the Court would be to examine the material available and find out whether the material is good for trial. The charge would be certainly groundless if it is framed in ignorance of settled proposition of law on a given subject. This Court has reason to interfere with the impugned order in exercise of powers conferred under Section 397 of the Cr.PC and thus the impugned order deserves to be quashed and set aside and the application for discharge deserves to be accepted - application allowed.
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