TMI Blog2019 (4) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... cord available before the Ld. MM, the show cause proceedings of the demand and recovery of the Central Excise duty alleged to have been evaded by the accused had been initiated and there was nothing in the complaint that any order in consequence thereof, of the determination of the evaded central excise duty had been passed by the proper officer / competent authority under the Central Excise Act. Instead, the accused petitioner had shown that the order was passed subsequently which was stayed by the Appellate Authority on the appeal preferred there against by the accused / petitioner - the impugned order dated 04.05.2018 vide which the petitioner had been summoned to face trial for the offence u/s 138 of NI Act suffers from a grave illegality and cannot be sustained. Revision allowed. - Case No.398/18, Criminal Revision no. 56/18 - - - Dated:- 7-1-2019 - MR. SATISH KUMAR ARORA, ASJ-02(FTC) ORDER 1. By way of present criminal revision petition filed u/s 397 of the Code of Criminal Procedure, 1973 (in short, 'Cr.PC'), revision petitioner/ accused has impugned the order dated 04.05.2018 passed by the Ld. MM-05, PHC, New Delhi in CC no. 24670-16 titled as Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition, it has been averred that the Ld. MM had failed to appreciate that a necessary ingredient to constitute an offence u/s 138 of NI Act that the cheque should have been drawn for the discharge of any pre-existing debt or liability, was missing in the complaint. It was very much apparent from the record of the complaint preferred by the complainant/ respondent that on the date when the cheques were drawn, there was no debt or liability payable by the accused. It is averred that in support of the claim of demand of Central Excise Duty payable by accused, complainant had relied upon a show cause notice dated 08.05.2013. A bare perusal of the show cause notice would show that the accused was called upon to show cause why the amount of Central Excise Duty mentioned therein should not be demanded and recovered. As such, when there was a show cause for demand and recovery, there was no legally enforceable liability of the accused constituting an offence punishable u/s 138 NI Act. 4. It has been further averred that the show cause notice dated 08.05.2013 was issued u/s 11A of the Central Excise Act, 1944 and as per sub-section (10) thereof, the proper officer was supposed to pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red that the cheque so tendered were for the existing legally enforceable liability of the accused towards the Central Excise Duty as evaded by him. Prayer was accordingly made to dismiss the petition. 7. I have heard Ld. Spl. PP Sh. Satish Aggarwala for the Customs/respondent and Sh. Bharat Bhushan, Ld. counsel for the revision petitioner and have also perused the record carefully. 8. For the complainant to make out a case against the accused for the offence u/s 138 NI Act, first of the requirements is of the cheque by the accused/ drawer having been issued for the discharge, in whole or in part, of any debt or other liability. Admittedly, in the present case, the complainant / respondent had instituted the prosecution u/s 138 of NI Act against the accused/ petitioner before the Ld. MM on the basis of the accused having tendered certain cheques to the Excise Officials when they had carried out a raid / search of his premises. It is when his statement u/s 14 of the Central Excise Act, 1944 was recorded, that the complainant alleges in the complaint that the accused had admitted his liability to pay the Central Excise Duty evaded by him on the pretext of his entitled to exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed the entire proceedings as provided under the Central Excise Act of recovery of evaded central excise duty alongwith interest and penalty as applicable. In this regard, the judgment of Hon'ble High Court of Delhi in Digipro Import Export Pvt. Ltd. vs Union of India, 2017 (350) ELT 145 (Del) as cited by the ld. counsel for the petitioner in his submissions, can be gainfully referred to. The facts before the Hon ble High Court were of the Central Excise Officials having conducted a search / raid at the premises of the petitioner Digipro on the basis of intelligence input of the petitioner having wrongfully availed exemption under some notification of the Central Excise. It was at the time of the search being carried out, that certain cheques towards the duty liability of ₹ 1.25 Crores were stated to have been voluntarily tendered by the Director of the petitioner company. It was observed by the Hon'ble High Court that it appears from the affidavit of the respondent / customs department that officers of the department who go on a visit/ survey etc to detect evasion of CE duty, have the discretion to decide on the spot what the evaded duty amount is; to collect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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