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TMI Blog2017 (9) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... he charge-sheet under Section 9(1) of the Act besides order dated 7.8.2014 of Additional Sessions Judge, Panipat dismissing the revision petition filed against the framing of charge. Inter alia, in the petition, it is contended that the petitioners are engaged in the work of doubling cotton yarn since the year 1992; that a fire broke out in the factory of petitioners on 13.5.1997 for which insurance claim was granted to them; that the Surveyor at that point of time mentioned in his report that machines installed at the factory were only for doubling/manufacturing of cotton yarn and not that of chenille yarn; that the petitioners thereafter purchased new machines in January 1999, which were primarily for doubling cotton yarn but could be later on upgraded for spinning of chenille yarn also; that on 16.02.1999 a raid was conducted by the officials of the Central Excise Department at the premises of petitioners as a result of which 1350 kg of chenille yarn of the value of Rs. 1,11,150/- was found lying there; that it was alleged that 65 machines were found installed in the premises of the petitioners for spinning of chenille yarn, proceedings were taken up against petitioner No.1 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal and even the demand was not finalized, the complaint could not be allowed to continue, the operative part of the order reads as under: "10. Regarding quantification we find that the appellants produced the evidence on record and the Revenue also made some enquiries from their customers to show that they were also trading in the cotton yarn which is not dutiable. The demand was quantified taking into consideration all the clearance made by the appellants as chenille yarn which according to our opinion is not sustainable. The Revenue duty bound to raise the demand in respect of chenille yarn manufactured and cleared by the appellants without payment of duty. As the appellants were also trading in the cotton yarn which is exempted, therefore all the clearance made by the appellants shall not be presumed to be in respect of chenille yarn manufactured by them. This aspect requires reconsideration. Therefore, the impugned order is set aside and the matter is remanded to the adjudicating authority for requantification of the demand on the basis of chenille yarn manufactured and cleared by the appellants during the relevant period. This appeal is disposed of by way of remand." (c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stence; and (h) that criminal proceedings against the petitioners cannot be continued till proceedings pending before the Appellate Court are adjudicated. In the end, the petitioners prayed that their petition be accepted. When the petition came up for hearing, notice thereof was issued to the respondent, who put in appearance through counsel and opposed the petition. I have heard learned counsel for the parties besides going through the record. Learned counsel for the petitioners has reiterated the contentions raised in the petition by way of advancing arguments. He has referred to various authorities, first being Richman Silks Ltd. Versus Asstt. Commr.(Legal), Cus. & C. Ex., Hyderabad, 2005(182) ELT 318 by High Court of Andhra Pradesh, wherein it was observed that when the adjudication order set aside by the Appellate Authority and same is remanded to pass fresh order, the prosecution filed and pending on the basis of such adjudication order is not maintainable, though the customs and central excise authorities are free to file a fresh prosecution depending upon the order of adjudication, subsequently to be passed by application of mind. He has referred to a few other author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly absurd and inherently improbable that no prudent person can ever reach such a conclusion. 4. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not a the stage of framing of charge or quashing of charge. 5. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather then its quashing at that initial stage. In that very judgment, it has been observed as under: The Court in para 27 has recorded its conclusion and laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in context of quashing of charge framed under Section 228 Cr. P. C. Para 27, 27(1), (2), (3), (9), (13) are extracted as follows: "27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and quash the complaint besides ancillary proceedings. As per the authorities pressed into service by learned counsel for the petitioners, the adjudication proceedings had been set aside/dropped, whereas it is not so in the instant case rather the case has been remanded by the Tribunal to Commissioner, Central Excise to requantify the demand, that means the point out difference is the amount of penalty which is to be imposed and not that no penalty is to be imposed for non-contravention of provisions of the Excise Act in question. The prosecution has been launched against the accused for committing an offences under Sections 9 and 9AA of the Act for the reason that chenille yarn was found in the factory premises of the accused without any record being maintained in that regard, rather it was wrongly described as cotton yarn. The complaint is based upon such allegations. When charge was framed against the accused by Chief Judicial Magistrate, Panipat, these very contentions had been raised there but were rejected by learned Chief Judicial Magistrate and accused was served with charge-sheet. They had filed a representation against the order framing charge but again were unsuccessful ..... X X X X Extracts X X X X X X X X Extracts X X X X
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