TMI Blog2015 (6) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... er before the Magistrate of Pune and within the prescribed period. There is provision in the Act like section 22 taking care of search, seizure etc. Thus no relief as claimed by the petitioner can be given in the present case. - Decided against assessee. - Criminal Writ Petition No. 1158 of 2013 - - - Dated:- 15-4-2015 - T. V. Nalawade And I. K. Jain,JJ. For the Petitioner : Shri R R Mantri, Adv. For the Respondent : Dr. (Smt.) Kalpalata Patil Bharaswadkar, Adv. and Shri B L Dhus, Additional Public Prosecutor ORDER 1. The petition is filed for relief of declaration that the arrest of the petitioner was illegal, the seizure of amount of ₹ 45 lakh from possession of the petitioner was illegal and the proceeding like adjudication under the Central Excise Act cannot be held against the petitioner. Relief of return of the aforesaid amount seized by the officers of the Central Excise is also claimed. Both the sides are heard. 2. The petitioner is share holder of majority shares of one private company by name M/s Rutuja Ispat Private Limited Company situated at Jalna, Maharashtra . Shri. Shailesh Badjate and Shri. Sushil Badjate, two sons of the present pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner, the petitioner and his two sons were asked to explain about possession of this amount. No satisfactory explanation was given by these persons. The petitioner tried to say that it was his own income and it was his income from profession as Tax Consultant. There were no income tax returns in respect of such huge amount. This amount is kept by the Excise Department in fixed deposit in a bank. 7. During investigation, the statements of employees of the factory are recorded. There is statement of person like Accountant, Prashant Jadhav and the statement shows that as per the instructions given by Sushil, he had maintained separate record of unaccounted purchase of raw material and unaccounted manufacture and sale of finished material. The statement reveals that separate electronic record was created in respect of these concealed transactions. Statement of Prashant shows that no Central Excise duty was paid in respect of this unaccounted manufacture and sale of the goods. 8. Statement of Gopal Tak, other employee of the factory, shows that he used to collect cash in respect of unaccounted sale transaction of MS/TNT Bars and this cash he used to hand over to the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of ₹ 33.99 lakh was deposited in the bank. His statement shows that he had withdrawn amounts from the bank and he used to hand over the amounts to the present petitioner. Thus amount of more than one crore rupees was deposited by the petitioner and his sons in the accounts of their employees and Benami record was created but this amount was utilized by the petitioner and his sons. 14. Sushil and present petitioner came to be arrested at Jalna on 16-8-2011 for contravention of provisions of the Central Excise Act and they were produced before the Chief Judicial Magistrate, Pune on 17-8-2011. On the same day, on the ground of old age bail was granted to the petitioner. Shailesh was arrested in Pune and he was produced before the Chief Judicial Magistrate on 17-8-2011. Bail was refused to Shailesh and Sushil by the Chief Judicial Magistrate. Even the Sessions Court refused the bail to them. This Court at Principal Seat granted bail to Sushil and Shailesh subject to following conditions:- (a) that they shall not transfer the property of the factory viz Gat No.199/3 of Jalna until adjudication proceeding is completed and liability towards duty and penalty is discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be used in such a case need to be considered first. Learned counsel for the petitioner submitted that the Department has produced copy of Notification No.68/63-C.E. of the Central Excise as amended up to 2-9-1997. The Notification shows that as provided under section 12 of the Central Excise Act, Central Government has declared that provisions of Sections 105 (1), 110, 115 (excluding clauses (a) and (e) of sub-section (1)), clause (a) of section 118, sections 119, 120, 121 and 124, clause (b) and sub clause (ii) of clause (c) of sub-section (1) of section 142 and section 150 of the Customs Act shall apply to the matters specified therein for like matters provided under the Central Excise Act. Those provisions are to apply subject to following modification and alterations:- (1) The reference to smuggled goods shall be deemed to be the reference to excisable goods which have been removed in contravention of any of the provisions of the Central Excise Rules 1944 . (2) In section 115, in sub section (2) reference to smuggled goods shall be taken to be reference to excisable goods removed without payment of Excise Duty ; and (3) reference to goods which are sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 121 of the Customs Act, 1962 reads as under: 121. Confiscation of sale-proceeds of smuggled goods.-- Where any smuggled goods are sold by a person having knowledge or reason to believe that the goods are smuggled goods, the saleproceed thereof shall be liable to confiscation. 23. Section 124 of the Customs Act shows that no order of confiscation or imposing penalty can be made unless the owner is given notice in writing of the proposed confiscation or imposition of penalty. The provision also shows that opportunity needs to be given to such person to make representation in writing against the proposed confiscation and imposition of penalty. Reasonable opportunity of hearing is also expected in such a proceeding. However if the person concerned requests, oral representation can also be accepted. 24. The provision of Section 142(b), clause (ii) of clause (c) of the Customs Act shows that there is power to the officers to distrain goods until amount payable is paid. 25. The aforesaid provisions are made applicable for implementation of the provisions of the Central Excise Act. There are more provisions in the Central Excise Act also with regard to the powers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds excisable goods which have been removed or sought to be removed in contravention of any of the provisions of the Central Excise Act and the Rules are to be read. (iii) Provisions of Sections 118, 119 and 120 of the Customs Act are made applicable. They show that packages and other goods used for evasion of customs duty on the goods involved are also liable to confiscation. Particularly when the provision of Section 121 shows that the sale proceeds of the excisable goods in respect of which there has been contravention can be confiscated, it needs to be presumed that condition given in section 110(2) and the procedure given in section 121 of the Customs Act to the property mentioned in section 121 is applicable. Thus the scheme of the Act shows that it was necessary to issue notice within six months from the date of seizure in the present case also. The learned counsel for the petitioner has placed reliance on following reported cases:- (1) 1983 (14) E.L.T. 1715 (Del.) (Shantilal Mehta v. Union of India; (2) 1982 (10) E.L.T. 273 (Bom.) (Dhirajlal Amritlal Mehta v. Union of India); (3) 1987 (31) E.L.T. 30 (Cal.) (D. Sengupta v. Collector of Customs); and, (4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reliance on a case reported as AIR 1974 SC 348 (Pooran Mal v. Director of Inspection). 29. The relief of quashing the adjudication proceeding started against the present petitioner also cannot be given to the petitioner in view of the material already discussed. The material is sufficient to make out a prima facie case that he was involved in running of the business and he was collecting money, sale proceeds in respect of the excisable goods. He was actively involved in evasion of the excise duty. Thus the proceeding of confiscation and imposition of penalty can go on against him. The learned counsel for the Department has placed reliance on the following cases reported as Polar Mar (2) AIR 2004 SC 3328 (Commissioner of Customs v. M/s Charminar Nonwovens Ltd.). 30. The submission for the present petitioner that his arrest was illegal and the offence is bailable is also not acceptable. The material collected shows that false record was created for evasion of excise duty. Thus, it is a case of forgery and fraud also. There has been evasion of excise duty in respect of goods worth more than ₹ 140 crore. Provisions of sections 9, 9-A and 9-AA of the Central Excise Act sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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