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TMI Blog2015 (4) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... oners. The discharge was in ignorance of the fact that proceedings were not terminated after determination of the issues on merit but on a technical ground of limitation. 3. The revisional court was persuaded further by dismissal of reference by the High Court. It was again without realizing that dismissal was not on merit but on account of default of the department to appear before the court. The issue on merit was not touched either by the Tribunal or by the High Court so as to have consequence on the prosecution. Without realizing the aforesaid, impugned order was passed discharging the non-petitioners. The court below failed to make distinction between two separate proceedings and its effect. In one proceedings, recovery of excise duty along with penalty can be made, whereas in the other, order of punishment is passed. The two proceedings operated in distinct areas and with different consequences. To support the argument, a reference of judgment of Supreme Court in the case of Standard Chartered Bank v. Directorate of Enforcement AIR [2005] SC 2622 has been given. A prayer is accordingly made to quash the impugned order. 4. Per contra, learned counsel for non-petitioners subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) or clause (xxvii) of sub-section (2) of section 37; (b) evades the payment of any duty payable under this Act; (bb) removes any excisable goods in contravention of any of the provisions of this Act or any rules made thereunder or in any way concerns himself with such removal; (bbb) acquires possession of, or in any way concerns himself in transporting, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or any rule made thereunder; (bbbb) contravenes any of the provisions of this Act or the rules made thereunder in relation to credit of any duty allowed to be utilized towards payment of excise duty on final products; (c) fails to supply any information which he is required by rules made under this Act to supply, or (unless with a reasonable belief, the burden of proving which shall be upon him, that the information supplied by him is true) supplies false information; (d) attempts to commit, or abets the commission of, any of the offences mentioned in clauses (a) and (b) of this section; shall be punishable, - (i) in the case of an off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1962) to deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or control, or may recover the amount by attachment and sale of excisable goods belonging to such person; and if the amount payable is not so recovered, he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector, on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as if it were an arrear of land revenue. Provided that where the person (hereinafter referred to as predecessor) from whom the duty or any other sums of any kind, as specified in this section, is recoverable or due, transfers or otherwise disposes of his business or trade in whole or in part, or effects any change in the ownership thereof, in consequence of which he is succeeded in such business or trade by any other person, all excisable goods, materials, preparations, plants, machineries, vessels, utensils, implements and articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t operates for the offences and consequential penalties. No limitation for initiation of prosecution has been given therein. The facts aforesaid are relevant as proceedings in pursuance to Section 11 of the Act of 1944 were terminated as the notice was found beyond the period of limitation for recovery of excise duty. The Tribunal found case to be falling in first category having limitation of 6 months and not in second category having limitation of 5 years. The order was passed in favour of the assessee after recording finding on the issue of limitation, thus it becomes clear that determination of the issues by the Tribunal was not on merit but on limitation. It may be that arguments were made even on merit but no finding has been recorded, if the order of the Tribunal is perused. 8. The other proceedings are through a reference to the High Court. There again reference has not been answered either way but proceedings were terminated on account of default of the party to appear, therefore, determination of the issues was not on merit. The aforesaid facts are relevant and have its effect on the proceedings under Section 9 of the Act of 1944. It is in reference to judgment cited by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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