TMI Blog2012 (1) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... ing branded name as Balwan Chhap Sugandit Khaini. On 2.5.1997 a team of Central Excise officers visited the factory premises of the aforesaid company and examined documents/ records and then it was detected that the aforesaid company had clandestinely removed branded chewing tobacco more than once on one invoice and as such their invoice books as well as transport challans were resumed for through scrutiny and it was detected that under the same set of invoice goods have been transported some time to Jainagar, some time to Sitamarhi and some invoices were used for some other transportations. On examination of the documents, it was also found that petitioners clandestinely removed 7053 cartons having quantity of 196.534 M.T branded chewing tobacco using 45 invoices in the above stated manner and evaded central excise duty amounting to ₹ 69,81,987.84/- and accordingly, all the above stated petitioners are liable for punishment under sections 9(i)(b), 9(i)(c) and 9(AA) of Central Excise Act, 1944. The Chief Commissioner of Central Excise Ranchi Zone, Patna granted sanction for prosecution and to file case against the petitioners and accordingly, complainant filed the above state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion of the Tribunal is unreasonable and perverse? 7. It is further contended by him that after passing of the above stated order of the Hon'ble High Court, Calcutta, petitioners filed application for stay before the Hon'ble Tribunal and the Hon'ble Tribunal directed the petitioners to deposit a sum of ₹ 20 lakhs as a condition precedent to stay of demand of central excise duty and penalty vide as per demand -cum- show cause notice. In compliance of the aforesaid order of Hon'ble Tribunal, the petitioners deposited a sum of ₹ 20 lakhs with Excise authority and after that the Hon'ble Tribunal stayed recovery of central excise duty till final disposal of reference application by the Hon'ble High Court, Calcutta. 8. It is further contended by him that since the complaint case bearing Complaint case no. 378C/2008 has been filed in the court of the Presiding Officer, Economic Offence, Patna on the same ground and therefore, in the interest of justice further proceedings of aforesaid complaint case must be stayed till final decision of the Hon'ble High Court, Calcutta in reference application. 9. Learned Counsel appearing for the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint as to whether the goods in question were clandestinely removed or allegation of clandestine removal of the goods has only been levelled on the basis of suspicion and surmises ignoring the relevant materials. 11. It is further contended by him that admittedly, reference application is pending before the Hon'ble High Court, Calcutta and, therefore, the appeal filed by the petitioners against confirmation of demand-cum- show cause notice by the Commissioner, Central Excise, Patna is still pending. In support of his contention, he referred a decision reported in Vol. 157 1986 ITR 665 (SC) CIT vs Bansi Dhar sons) in which it has been held that the pendency of the reference does not detract from jurisdiction of tribunal to grant stay of realization of tax or injunction because the aforesaid jurisdiction remains with the appellate tribunal. 12. It is further contended by him that since the petitioners are only interested for stay of further proceedings of Complaint case no. 378C/2008 till disposal of their appeal pending before the Hon'ble Tribunal, this Court should exercise its power vested under section 482 of the Cr.P.C because the petitioners have no any other wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal, petitioners filed reference application before the Hon'ble High court, Calcutta and the Hon'ble High court, Calcutta vide its order dated 20.9.2001 passed in CEXA 3/2001(Choubey Sugandhit Tobacco company vs Commissioner, Central Excise, Patna and another) directed the Tribunal to refer following questions for the opinion of the court:- (i) Whether in absence of any specific allegation of any fraud or collusion or wilful mis-representation in the show cause notice, the provisions of the proviso of section 11-A extending the period of limitation beyond six months is justified in law and without and /or in excess of the competent jurisdiction or authority of the Commissioner or Central Excise?. (ii) Whether the Tribunal in arriving at the conclusion of clandestine removal of the goods proceeded on suspicion and surmises ignoring the relevant materials and/or evidence which clearly demolish such conclusion and as such said conclusion of the Tribunal is unreasonable and perverse? 16. After the above stated order of the Hon'ble High Court, Calcutta, the Hon'ble Tribunal stayed final order passed by the Commissioner, Central Excise, Patna as well as or ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
