9911796707
TMI Blog2018 (3) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... e imprisonment till raising of the Court R3 to R9, R11 & 12 / A3 to A9, A11 & A12 9(1)(d)(i) of the Central Excise Act, 1944 3. R3 to R12 / A3 to A12 9(1)(d)(i) of the Central Excise Act, 1944 Fine of Rs. 1,000/-, in default, R10 being a Firm, R3 to R9, R11 & R12 / A3 to A9, A11 & A12 to undergo 1 Month S.I. (in total Rs. 10,000/-) 2. The brief facts of the case is that the petitioner / complainant had filed the private complaint in C.C.No.4 of 2002, against the respondents / accused for the offences under various provisions of the Central Excise Act for having evaded payment of the central excise duty(during the period between 01.04.1993 and 11.10.1996) to the tune of Rs. 46,58,289/- by non-observing the central excise procedures and formalities, mis-declaring the variety of the manufactured products, suppressing the value of bills made by them without payment of duty and willfully raising bogus invoices suppressing the value of goods. The first accused is a Firm engaged in the manufacture of detergent bars used for washing stainless steel vessels, the second accused is the Manager of the first accused / Firm, accused Nos.3 to 5 are the persons incharge and responsible f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d committed an error by imposing a lesser sentence of imprisonment i.e., till the raising of the Court, without following the mandatory provisions of Section 9(1)(d)(i) of the Central Excise Act, 1944, which prescribes that in the absence of special and adequate reasons to the contrary to be recorded in the Judgment of the Court, such imprisonment shall not be for a term of less than six months. 6. The learned Special Public Prosecutor appearing for the petitioner / complainant contended that inasmuch as when no special and adequate reason to the contrary having been recorded in the Judgment, it is an error apparent and thereby the revision has to be allowed and the case has to be remanded to the Trial Court to impose sentence in accordance with law. 7. At this juncture, it is relevant to refer to the provision of Section 9(1) (d)(i) of the Central Excise Act, 1944, which reads as follows: "9.Offences and penalties (1) Whoever commits any of the following offences, namely:- [(a) contravenes any of the provisions of section 8 or of a rule made under clause (iii) or clause (xxvii) of sub-section (2) of section 37:] (b) evades the payment of any duty payable under this Act; [(bb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of less than six months;" 9. Mrs.S.Srimathy, learned counsel appearing for the respondents / accused submitted that they had preferred an appeal in Appeal Nos.C/960 to 971 / 1998, challenging the Order-in-Original No.1 of 1998, dated 29.01.1998, passed by the Commissioner of Central Excise, Madurai, and that the Customs, Excise and Service Tax Appellate Tribunal, Southern Region Bench, Chennai, by order dated, 27.01.2005, had remanded all the matters to the Jurisdictional Adjudicating Authority to examine the aspect of violation afresh and against that order, the Department had filed Civil Miscellaneous Appeals, which were dismissed by the Hon'ble Division Bench of this Court and that the matters are now pending for adjudication before the Commissioner of CGST and Central Excise, Madurai and prayed that this court may take into consideration the long lapse of time and thereby instead of remanding the matter may accept the reasons given by the respondent/accused and confirm the Judgement of the Trial Court. 10. With regard to the above submission of the learned counsel for the respondents / accused, the learned Special Public Prosecutor for the petitioner submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. ... ... 20. In order to exercise the discretion of reducing the sentence the statutory requirement is that the court has to record "adequate and special reasons" in the judgment and not fanciful reasons which would permit the court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but also special. What is adequate and special would depend upon several factors and not straitjacket formula can be indicated. What is applicable to trial courts regarding recording reasons for a departure from minimum sentence is equally applicable to the High Court. The only reason indicated by the High Court is that the accused belonged to rural areas. The same can by no stretch of imagination be considered either adequate or special. The requirement in law is cumulative. 21. Considering the legal position as indicated above the High Court's order is clearly unsustainable and is accordingly set aside. The respondents are directed to surrender to custody forthwith to serve the remainder of the sentence. The appeal is allowed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial court to award the sentence of less than five (5) years. Awarding of punishment of 3 months by the trial court was hopelessly disproportionate particularly in view of the fact that no mitigating circumstance has been pointed out by the trial court. The High Court failed in its duty to take up the matter in its revisional power under Section 401 read with Section 386(e) of the Code of Criminal Procedure, 1973 and enhance the punishment commensurate to the offence committed by them. We are appalled that the High Court reduced the sentence to four days. 8. In State of U.P.v.Shri Kishan, this Court has emphasised that just and proper sentence should be imposed. The Court held: (SCC p.423, paras 8-9) "8.....Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 9. The Court will be failing in its duty if appropriated punishment is not awarded for a crime which has been committed not only against the individ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court must exercise its discretion in imposing the punishment objectively considering the facts and circumstances of the case. 24. The power under the proviso is not to be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation ........The court while exercising the discretion in the exception clause has to record 'exceptional reasons' for resorting to the proviso. Recording of such reasons is sine qua non for granting the extraordinary relief. What is adequate and special would depend upon several factors and no straitjacket formula can be laid down." 14. Heard the arguments of both side counsels and carefully and consciously gone through the records on file. 15. It is seen that the Trial Court having found the respondents / accused guilty under the relevant provisions of the Central Excise Act failed to ensure compliance with mandatory requirement, but awarded the punishment till raising of the Court, which is lesser than the minimum prescribed under the Act. In order to exercise desertion of reducing the sentence, the statutory requirement is that the Court has to record special and adequ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
