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2016 (7) TMI 124 - ALLAHABAD HIGH COURT

2016 (7) TMI 124 - ALLAHABAD HIGH COURT - 2016 (336) E.L.T. 637 (All.) - Prosecution proceedings u/s 9/9AA of the Central Excise Act, 1944 - it was argued that the criminal prosecution in the present matter could also not go on for the reason that the departmental proceeding started against the revisionists to realize the fine/tax has been quashed. - Held that:- it is evident that the revisionists have not been exonerated from the penalty/tax liability etc. but the case was remitted back for fre .....

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dence available on record, no illegality, infirmity or impropriety is found in the impugned order and it cannot be said that no prima facie case is made out against the revisionists. The findings recorded by the concerned Magistrate in the impugned order does not require interference by this Court. There is no violation of any law or rule. - The revision lacks merits and is liable to be dismissed. - Decided against the petitioner. - CRIMINAL REVISION No. - 4581 of 2015 - Dated:- 5-2-2016 - O .....

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ay further proceedings of the aforesaid case. Heard Shri V.K. Upadhya, learned Senior Counsel assisted by Shri Ritvik Upadhya, learned counsel for the revisionists and Shri B.K. Singh Raghuvanshi, learned senior standing counsel appearing for the Department-opposite party no. 1 as well as the learned A.G.A. appearing for the opposite party no. 2. Sri Vinod Kumar Upadhya, learned Senior Counsel assisted by Sri Ritvik Upadhya, learned counsel for the revisionists submitted that the present complai .....

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se duty/ tax penalties and remitted the matter back to the Commissioner Central Excise Lucknow to decide afresh. Earlier, the revisionists vide application u/s 482 no. 31300 of 2014 approached this Court against the order passed in the complaint and this Court by the order dated 21.8.2014 directed the revisionists to move discharge application. In compliance of the said order, the revisionists moved discharge application before the concerned Magistrate but the Court below placing reliance on the .....

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was no ground to proceed with the complaint and there was also no fresh sanction on which basis complaint could be proceeded with. In support of the arguments, learned counsel for the revisionists placed reliance on the following case laws: 1. Radheyshyam Kejriwal Vs. State of West Bengal in (2011) 3 Supreme Court Cases 581. Though 2011 Volume (266) ELT Page 294 (SC). 2. J.P. Tobacco Products Private Limited Vs. Assistant Collector of Central Excise (M.P.) reported in 2008 (229) ELT 325. On the .....

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ty of hearing to the revisionists, with a view to place argument in support of exoneration. The order dated 28.8.2015 is also of same nature. The order for starting de-novo proceedings was also passed with a view to fix separate liability. It was further submitted that the order passed by the concerned Magistrate on the discharge application, moved by the revisionists, are well founded and on the basis of correct appreciation of the evidence and the facts. The Court dealing with the matter at th .....

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e learned counsel for the parties. In the present matter, in compliance of the order passed by this Court, discharge application was moved on behalf of the revisionists. An objection was invited by the Court concerned on the discharge application and after hearing the parties vide order dated 9.10.2015 discharge application was rejected observing that the adjudication proceeding and the criminal proceeding both are independent proceedings. The adjudication proceeding has not been finally termina .....

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hyam Kejriwal case (supra) has clearly held that in case of exoneration on merits in such adjudication proceedings, whereby the allegations are found to be unsustainable at all and a person concerned is held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue. It has also been held that whether allegations in both proceedings are identical and exoneration in adjudication proceedings is not on technical grounds, but on findings that there was no .....

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h are independent to each other and both can go on hand in hand. It has also been held that prosecution can be launched even before conclusion of the adjudication proceedings under Section 51 of the Act. If the ratio laid down by the Hon'ble Supreme Court in Radheyshyam Kejriwal case (supra) is taken into consideration, it is evident that the proceeding for imposition of penalty initiated against the accused/revisionists is distinct from the criminal complaint filed against them, both can co .....

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concerned Magistrate on the ground that adjudication proceeding has come to an end. On perusal of the documents annexed with the memo of revision and also the reasoning given in the impugned order, it is evident that the revisionists have not been exonerated from the penalty/tax liability etc. but the case was remitted back for fresh decision for fixing liability of each and every individual separately after giving opportunity of hearing to the revisionists. So far as the contention raised by th .....

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