TMI Blog2009 (3) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant. Shri Amitabh Gupta, Advocate, for the Respondent. [Judgment].- This is an appeal against acquittal of the respondents in respect of the offence punishable under Section 9(1)(d)(i) of the Central Excise and Salt Act, 1944 (now called as Central Excise Act, 1944 and hereinafter referred to as 'the Act'). The corresponding judgment-dated 14-7-1993 passed by First Additional Sessions Judge, Indore in Criminal Appeal No. 112/91 is the subject matter of challenge. The appeal was directed against the conviction and the consequent sentences as passed on 19-9-1991 by Additional Chief Judicial Magistrate (Economic Offences), Indore in Case No. 99/1988. 2. Respondent no. 1 M/s. Nagpur Engineering Co. Ltd. (for short 'R1') is a Company registered under the Companies Act, 1956 and the respondent no. 2 Arvind Ayyar (for brevity 'R2') is its Chief Executive. At the relevant point of time, Bhilai Based Unit of the Company was engaged in manufacturing of Cast Iron Anti Creep Bearing Plates (CIACBP) in accordance with the specifications and design approved by RDSO (Research, Design and Specification Organization) of the Ministry of Railways, Government of India. 3. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, R2 examined himself as a witness. 6. Upon consideration of the entire evidence on record, the learned ACJM, for the reasons recorded in the Judgment-dated 19-9-1991 (supra), concluded that the respondents were guilty of the offences charged with. He, accordingly, convicted them and sentenced as under - Respondent Sentenced to R1 To pay a fine of Rs. 25,000/- R2 undergo R.I. for 6 months and to pay a fine of Rs. 2000/- and in default to suffer S.I. for 1 month. 7. Being aggrieved, the respondents questioned legality and propriety of the convictions by filing the appeal before Court of Session. Before this appeal could be heard finally, the Tribunal disposed of their appeal against the adjudication order vide order dated 12-10-1992, reported as Nagpur Engg. Co. Ltd. v. Collector of Central Excise - 1993 (63) E.L.T. 699 (Tribunal). Accordingly, even after rejecting the contention that the product viz. CJACBP was classifiable under the sub-heading 7302.90, the Tribunal proceeded to set aside the penalty holding that the act of the respondents in not applying for Central Excise Licence was based on a bona fide bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to account while deciding the appeal against conviction as prosecution in a criminal Court has to be determined on its own merits uninhibited by the finding of the Tribunal. He has further urged that mens rea is not a constituent part of the offence under Section 9 of the Act. 10. In response, learned counsel for the respondents has submitted that even the prosecution of the respondents was not sustainable in view of exculpatory and conclusive findings of the Tribunal, which is the successor of Central Government by virtue of Section 35-B of the Act. To buttress the contention, reliance has been placed on the following decisions - (i) G.L. Didwania v.Iincome Tax Officer - 1999 (108) E.L.T. 16 (S.C.) = (1997) 140 CTR (S.C.) 273 (ii) S.K. Sinha v. S.K. Shingal - 1987 (30) E.L.T. 900 (Del.) (iii) Swathy Chemicals Ltd. v. Union of India - 2002 (139) E.L.T. 498 (Mad.) (iv) Chiramith Precision ( India ) v. Deputy Commr. of Cus. (P), Mangalore - 2004 (169) E.L.T. 145 (Kar.) (v) Jagmohan Jindal and Anr. v. State of West Bengal (vi) Metal Forgings Pvt. Ltd. and Ors. v. Superintendent (Preventive), Central Excise - 2008 (225) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. If, on the other hand, the exoneration in the adjudication proceedings is on merits and it is found that allegations are not substantiated at alt and the concerned person(s) is/are innocent, and the criminal prosecution is also on the same set of facts and circumstances, the criminal prosecution cannot be allowed to continue. The reason is obvious criminal complaint is filed by the departmental authorities alleging violation/contravention of the provisions of the Act on the part of the accused persons. However, if the departmental authorities themselves, in adjudication proceedings, record a categorical and unambiguous finding that there is no such contravention of the provisions of the Act, it would be unjust for such departmental authorities to continue with the criminal complaint and say that there is sufficient evidence to foist the accused with criminal liability when it is stated in the departmental proceedings that ex-facie there is no such violation. The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had no such mental state with respect to the act charged as an offence in that prosecution. Explanation. — In this section, "culpable mental state" includes intention, motive, knowledge of a fact, and belief in, or reason to believe, a fact. (2) For the purposes of this section, a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. - 16. In Noor Aga v. State of Punjab - 2008 AIR SCW 5964, the Apex Court had the occasion to examine the constitutional validity of Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which is in pan materia with Section 9C (above). It was held that the burden of proof under certain circumstances is placed on the accused would not, by itself, render the provision unconstitutional. The ambit and scope of the presumption was further explained in the following terms - "presumption would operate in the trial of the accused only in the event the circumstances contained there are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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