TMI Blog2021 (6) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty on the accused and there is no evidence to that effect. The order of the appellate authority has attained finality. Thus, continuance of prosecution against the petitioners under self-same allegations contained in the departmental proceedings is an exercise in futility. In view of the fact that the Commissioner (Adjudication), directed the department to initiate further proceedings in law for time being in force, as the accused company was found to have evaded payment of duty under Rule 9(2) of the Central Excise Rules, 1944 read with Section 11-A of the Act and confiscation was ordered and penalty was levied under the relevant Rules - It is settled law that the standard of proof in criminal proceedings is higher than the standard of proof in civil/departmental proceedings. In a reverse case, where criminal proceedings ended in acquittal but simultaneous departmental proceedings continued, the result of the criminal proceedings will not have any bearing on the departmental proceedings, as judgment of the criminal Court is not binding in civil or departmental proceedings. However, in the instant case, when the departmental proceedings ended in favour of the accused and mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the petitioners. 5. It is the case of the petitioners that departmental proceedings were initiated by issuing a show cause notice vide proceedings No.OR.490/95 dated 05.12.1995 wherein similar allegations were made against the petitioners based on same evidences including statements recorded by the respondent department during the course of investigation, were relied upon in the show cause notice. The petitioners gave a detailed reply to the show cause notice. After considering the entire evidence including the defence of the petitioners, the competent authority viz. Commissioner (Adjudication), by order dated 08.06.2001 held against the accused. The following are the conclusions of the competent authority: 47. In view of the above findings, I : - (i) confirm the demand of ₹ 25,03,044.75 against DTPL being the Central Excise Duty payable @ 225% Adv. On 34495 Kgs. Cut tobacco valued at ₹ 11,12,465.25 removed clandestinely without payment of duty and order immediate recovery of the duty of ₹ 25,03,044.75 under Rule 9(2) of Central Excise Rules 1944 read with Section11A of Central Excise Act 1944. (ii) Order confiscation of 11730 Kgs. (345 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by the 9 AR3As under which the cut tobacco was cleared from the factory of M/s. DTPL, Hyderabad was diverted and another consignment was being received at the factory of M/s. TCL, Varanasi on the same documents. We find that during the relevant period, the cigarette factory was in physical control and the cut tobacco was being transported in AR3As procedure after execution of bonds for due to arrival of the cut tobacco at the destination by following Chapter X procedure. We find from the panchanama drawn for seizure of 115 bags of cut tobacco on 15-6-95, the marks and numbers as shown in the AR3As covering this consignment are also as shown in the panchanama. Therefore, it cannot be said that these goods are substitute. The only different is that the vehicle number shown in the clearance documents at the factory of M/s. DTPL, Hyderabad is different from the vehicle from which these goods were unloaded at Varanasi. In the other two cases of seizure at Varanasi, the panchanama drawn at the time of seizure does now show any marks and numbers which were found on the bags. No subsequent panchanama was also drawn for any marks and numbers found on the bags. Only in the show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, the CESTAT opined that there is no offence committed by the petitioners, filing of the complaint by the respondent No.2 based on the orders passed by the Commissioner (Adjudication), virtually runs contrary to the orders passed by the CESTAT and thus, the impugned proceedings are arbitrary and amount to double jeopardy. The standard of proof in criminal proceedings is much higher than in departmental proceedings. In the instant case, when the department failed to establish the guilt of the accused in the departmental proceedings, it would not be possible to establish the same in criminal case. Hence, initiation of criminal proceedings is illegal and arbitrary. 8. It is further contended that, in the complaint, the respondent No.2 did not mention any additional evidence other than the evidence relied upon by the CESTAT. Thus, the whole exercise of the respondent No.2 is arbitrary and violative of Article 20(2) of the Constitution of India. The CESTAT allowed the appeal as long back as on 26.11.2003 whereas the complaint was filed by the respondent No.2 on 29.09.2005 almost after two years from the orders passed by the CESTAT and there is no explanation for the delay. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused cannot take advantage of the orders of the CESTAT as the same are under appeal before the High Court. The statements of the witnesses recorded under Section 14 of the Central Excise Act constitute substantial evidence and the statements are corroborated by documents and other evidence. The cut tobacco was clandestinely cleared from the premises of petitioner No.1/A1 at Hyderabad, which is within the jurisdiction of Hyderabad IV Commissionerate and investigation further revealed that complicity of the petitioner No.2. In view of the same, the Special Judge for Economic Offences has jurisdiction to entertain the complaint. The adjudication and prosecution are two different limbs. As per the provisions under Section 9(c) of the Central Excise Act, a presumption can be drawn with regard to culpable mental state. Thus, criminal case cannot be quashed on the threshold of prosecution, particularly, when the same requires detailed consideration. 12. Mr. Pratap Narayan Sanghi, learned counsel for the petitioners, relied upon two decisions of the Supreme Court viz. K.C. BUILDERS v. ASSISTANT COMMISSIONER OF INCOME TAX (2004) 2 SCC 731 and RADHESHAYAM KEJRIWAL v. STATE OF WEST B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Tribunal supersedes the order of the assessing officer under Section 143(3) more so when the assessing officer cancelled the penalty levied. 26. ... In our view, if the trial is allowed to proceed further after the order of the Tribunal and the consequent cancellation of penalty, it will be an idle and empty formality to require the appellants to have the order of the Tribunal exhibited as a defence document inasmuch as the passing of the order as aforementioned is unsustainable and unquestionable. ... 31. It is a well-established principle that the matter which has been adjudicated and settled by the Tribunal need not be dragged into the criminal courts unless and until the act of the appellants could have been described as culpable. In RADHESHAYAM KEJRIWAL's case (2 supra), while considering several decisions, the Supreme Court culled out the raio as follows: 19. We find substance in the submission of Mr. Sharan. There may appear to be some conflict between the views in Standard Chartered Bank (AIR 2006 SC 1301 : 2006 AIR SCW 1196) (supra) and L.R. Melwani (AIR 1970 SC 962) (supra) holding that adjudication proceedings and criminal proceeding are two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court. 13. Having heard both the learned counsel, it was enquired with the learned counsel about the status of the pending appeal. The learned Special Standing Counsel fairly submitted that the appeal CEA.No.33 of 2004 has been dismissed as withdrawn by order dated 29.10.2018. It is not denied by the respondent No.2 that the allegations leveled against the petitioners in the criminal proceedings are entirely based on the proceedings initiated against the petitioners pursuant to the show cause notice. In fact, it is clearly stated in the complaint that adjudication authority has passed an order against the accused by confiscating the contraband, cut tobacco and vehicles apart from imposing penalty. 14. On a perusal of the complaint, it is to be noted that the averments therein are verbatim repetition of the averments in the show cause notice dated 05.12.1995. There cannot be any doubt that departmental proceedings and criminal prosecution can be initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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