Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (4) TMI 998 - RAJASTHAN HIGH COURT

2015 (4) TMI 998 - RAJASTHAN HIGH COURT - 2015 (323) E.L.T. 721 (Raj.) - Prosecution proceedings where demand of duty was set aside on the ground of period of limitation - non-petitioners were discharged mainly on the ground that separate proceedings for imposition of penalty were decided in favour of the non-petitioners - Held that:- Perusal of Section 11 of the Act of 1944 shows as to when and for what purpose, it can be invoked. It is for recovery of excise duty which is not paid for various .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

o 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 arg .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Apex Court in the case of K.C. Builders (2004 (1) TMI 7 - SUPREME Court). In the instant case, Section 9 of the Act of 1944 does not provide any limitation to initiate the proceedings though there may be limitation for taking cognizance of offence under Cr.P.C. The issue aforesaid is not raised before me. When the Tribunal so as High Court has not touched the merit, there was no reason for the revisional court to discharge the non-petitioners by setting aside the order of learned Magistrate. The .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

O. 371 OF 2009 - Dated:- 3-3-2015 - M.N. BHANDARI, J. For The Petitioner : Tej Prakash Sharma For The Respondent : Sriram Yadav and V. Lakshmikumaran ORDER 1. By this petition, a challenge is made to the order dated 28.06.2008, whereby revision petition preferred by the non-petitioner was accepted. 2. Learned counsel for petitioner submits that a complaint was filed for the offence under Central Excise Act, 1944. Learned Magistrate took cognizance of offence followed by pre-charge evidence. At t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

re 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

has been given. A prayer is accordingly made to quash the impugned order. 4. Per contra, learned counsel for non-petitioners submitted that allegation against the non-petitioners was for taking benefit of Modvat in an illegal manner. A notice was issued by the Commissioner of Excise. The Tribunal found notice to be beyond the period of limitation, thus it was set aside. A reference before the High Court also resulted with same fate as it was dismissed in default. In view of the above, demand of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ffences and penalties. A reference of judgment of the Apex Court in the case of K.C. Builders v. Asstt. CIT [2004] 2 SCC 731 is given apart from judgment in the case of Swathy Chemicals Ltd. v. Union of India [2002] (139) ELT 498 (Mad.). In those cases, the issue was similar to the present case. In the case of K.C. Builders (supra), the allegation against the assessee was for concealment of income. The issue was decided in favour of assessee, thus prosecution lodged against him was quashed by Ap .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

under Section 482 Cr.P.C. be dismissed. 5. I have considered the rival submissions made by the parties and perused the record. 6. It is a case where two distinct proceedings were initiated by the department. One by invoking Section 11 and other by Section 9 of the Act of 1944. The reference of both the provisions has been given, thus quoted hereunder: "Section 9. Offences and penalties.- (1) Whoever commits any of the following offences, namely :- (a) contravenes any of the provisions of s .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

able 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

o be recorded in the judgment of the Court such imprisonment shall not be for a term of less than six months; (ii) in any other case, with imprisonment for a term which may extend to three years or with fine or with both. (2) If any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable 'for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine : Provi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods in relation to such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party in the commission of the offence; (iv) the age of the accused." .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ums may deduct or require any other Central Excise Officer or a proper officer referred to in section 142 of the Customs Act, 1962 (52 of 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ble 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 in the custody or possession of the person so succeeding may also be attached and sold by such officer empowered by the Central Board of Excise and Customs, after ob .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

overnment either forthwith upon the money becoming due or being held, or at or within the time specified in the notice, not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount; (ii) every person to whom a notice is issued under this subsection shall be bound to comply with such notice, and in particular, where any such notice is issued to a post office, b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

any other sums of any kind payable to the Central Government under any of the provisions of this Act or the rules made thereunder have become due, in respect of the amount specified in the notice and all the consequences under this Act shall follow." 7. Perusal of Section 11 of the Act of 1944 shows as to when and for what purpose, it can be invoked. It is for recovery of excise duty which is not paid for various reasons or could not be recovered. Section 11 of the Act of 1944, however imp .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rs (supra). It was a case in reference to Income Tax Act but the ratio propounded therein may apply to this case also. It could have been applied but having distinguishable fact, it cannot be. In the case of K.C. Builders (supra), two separate proceedings were initiated. One was for recovery of income tax and other for punishment. In the first proceedings, determination was made on merit. In view of the above, Hon'ble Apex Court found no reason to allow the criminal proceedings to continue a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version