TMI Blog2017 (9) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... esentation against the order framing charge but again were unsuccessful as their revision petition was dismissed by learned Additional Sessions Judge vide order dated 7.8.2014 giving detailed reasoning citing case law and observing that adjudication proceedings and criminal proceedings are independent and can go on simultaneously and finding in adjudication proceedings is not binding on criminal proceedings. The order passed by the Commissioner is a relevant piece of evidence to support the contentions in the complaint but besides that there is other evidence also both oral as well as documentary as it comes out from the perusal of the complaint. Therefore, no ground is made out to accept the petition and to quash the complaint and subsequent ancillary proceedings. Petition dismissed - decided against petitioner. - CRM-M-28998 of 2014 - - - Dated:- 18-9-2017 - H. S. Madaan, J. Mr.S.S. Narula, Advocate for the petitioners Mr.Amit Goyal, Senior Standing counsel for CBEC - respondent ORDER H. S. Madaan, J. Petitioners Rajeev Kumar son of Sant Parkash, Proprietor of M/s Hindustan Products, Ugrakheri Mor, Sanoli, Road, Panipat, Haryana and M/s Hindustan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o launch prosecution against the petitioners; that the said demand along with penalty was challenged by the petitioners before the Customs, Excise and Service Tax Appellate Tribunal, where the order of the Commissioner Central Excise was set aside on 6.11.2003 holding that the clearance allegedly made by the petitioners could not be presumed and adjudicating authority ought to re-quantify the demand on the basis of actual manufacture and clearance of chenille yarn; that although the order of demand and penalty had been set aside by the Tribunal vide order dated 6.11.2003, the Assistant Commissioner Central Excise, Panipat filed a complaint under Sections 9 and 9AA of the Act on 25.2.2005, which was numbered as complaint No.99 of 2005; that after filing of the complaint, the accused were summoned by Chief Judicial Magistrate vide order dated 25.2.2005 for the offences under Sections 9, 9AA of the Act, thereafter, the complainant led pre-charge evidence and on the basis thereof, charge for offence under Section 9(1) of Central Excise Act was framed against the petitioners vide order dated 29.3.2014; that the petitioners challenged that order by way of filing of a revision petition, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturing chenille yarn which were of January, 1999. In addition to that various documents and affidavits were placed on record which revealed that from the year 1.4.1996 to 31.12.1998 only cotton yarn was manufactured and supplied by the petitioners whereas it was not so regarding the chenille yarn. Various bills and reports of the Insurance Surveyor pertaining to the fire that took in the factory of the petitioners on 13.5.1997 were placed on record. The machinery for manufacturing of chenille yarn was acquired by the petitioners only in January, 1999, in that way chenille yarn was manufactured from January, 1999 to 16.2.1999. The total sale/clearance amount being ₹ 30,45,572/- upon which excise duty of ₹ 4,56,836/- was payable; (e) that the Courts below have completely failed to appreciate the fact that in absence of quantification of the excise duty alleged to have been evaded/not paid, prosecution could not be launched and the complaint is not maintainable for the reason that matter is still pending before Commissioner for adjudication, therefore, prosecution launched can continue to co-exist with the adjudication proceedings, although civil and criminal pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t aside the order of Commissioner but had rather remanded the matter to requantify the demand. The Commissioner by second adjudication has upheld demand of ₹ 99.89 lacs though the Appellate Tribunal had sent the matter back to Commissioner again, therefore, there is no reason to quash the complaint and the proceedings passed thereon. He has further contended that the criminal prosecution and adjudication proceedings are separate which can proceed simultaneously and further decision in adjudication proceedings is not necessary before initiating criminal prosecution, rather those two are independent in nature to each other. Furthermore, the finding given in the adjudication proceedings is not binding in criminal prosecution. Therefore, there is no ground to quash the proceedings. In support of his contentions, learned counsel for the respondent has referred to citation M/s Henna Export Corporation Versus Rakesh Mathur, 1994(3) R.C.R.(Criminal) 605 by a Coordinate Bench of this Court, wherein the contention that no prosecution be lodged when matter with regard to imposition of penalty was pending before the Tribunal under Central Excise and Salt Act, 1944 was repelled for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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