TMI Blog2001 (11) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... s raised by the Central Excise department were also clarified by the petitioner during the period 1986 to 1990. The petitioner filed classification list containing the details of the excisable goods and the rate of duty that is sought to be claimed by it by giving the details of the exemption notification for concessional rate of duty and the petitioner has been following these procedures without fail. The Excise Officer proposed modification of the classification list by issue of show cause notices on 15-5-1990 and August, 1990 and they were adjudicated upon on 16-9-1990 and in that order, the respondent department refrained from imposing any penalty acknowledging the fact that the petitioner had complied with the procedure prescribed under the law and had also got the classification list approved and hence there was no violation of any provisions of the Act or Rules and there was no attempt to evade payment of duty. While so, the Commissioner of Central Excise, Madras, issued show cause notice, dated 11-4-1991, seeking to demand a sum of Rs. 25,39,125.38 towards excise duty on brass/zinc/copper ingots manufactured by the petitioner during the period 1986-1990 by denying the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was named as Accused No. 2 in all the complaints. The Additional Chief Metropolitan Magistrate, Economic Offences, Egmore, Madras, took cognizance of the offence on 19-11-1996 and issued summons to the accused. In the appeal, CEGAT, by its order, dated 9.7.1999, set aside the order of the Commissioner and also the demand for duty of Rs. 24,51,006.96 and also the penalty of Rs. 2,00,000/-. The Appellate Tribunal held that all declarations were given by the petitioner in great detail, classification lists filed and approved, subsequent queries replied by the petitioner and there was no question of any mis-declaration with an intent to evade payment of duty. It further held that the petitioner claimed exemption under notifications by explaining the grounds on which such exemption was claimed and hence the claim for exemption would not amount to mis-declaration and the petitioner followed the procedure under the Central Excise Act and Rules, including the submission of classification lists, which were approved and clearance of goods on the prescribed clearance documents and hence Rule 9(2) would not apply. Accordingly, both the duty demand and the penalty were set aside in toto. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the petitioner, contended that the Tribunal has concluded that there was no mis-declaration by the petitioner with intent to evade payment of duty, its claim for exemption would not amount to mis-declaration and the petitioner has followed all the procedures under the Central Excise Act and Rules and the Tribunal has set aside the duty demand and the penalty in toto and the complaints are only repetition of the allegations made in the show cause notice and when the prosecution is based on the same set of facts and evidence, it will be unjust to require the petitioner to go through the process of prosecution in the circumstances of the case and in support of his contention, he relied on the following decisions. In Uttam Chand and Others v. Income Tax Officer, Central Circle, Amritsar, reported in (1982) 2 SCC 543, the Supreme Court held that it would be clear from the order of the Tribunal that the assessee was the partner of the firm and the firm was a genuine firm and hence the assessee cannot be prosecuted for filing false returns and quashed the prosecution. In S.K. Sinha v. S.K. Shingal and Another, reported in 1987 (30) E.L.T. 900 (Del.), the Delhi High Court he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessing authority has escaped assessment. So far as this issue is concerned, the finding of the Appellate Tribunal is conclusive. Therefore, as held in Uttam Chand's case (1982) 133 ITR 909 (S.C.), the prosecution cannot be sustained. Accordingly, the proceedings are quashed and the appeal is allowed." 6.Per contra, Mr. T. Sivananthan, Special Public Prosecutor for the respondent, contended that the adjudication by the Tribunal is not a bar to the criminal prosecution and the prosecution in a Criminal Court is to be determined on its own merits uninhibited by the finding of the Tribunal and he relied on the decision in Assistant Collector of Customs v. L.R. Malwani, reported in 1999 (110) E.L.T. 317 (S.C.). The question that arose for decision in that case was as to whether the prosecution was barred under Article 20(2) of the Constitution of India as against the accused by reason of the decision of the Collector of Customs in the proceedings under the Customs Act and the Supreme Court held that the adjudication before the Collector of Customs is not a prosecution and there is no bar to the criminal prosecution and it does not amount to double jeopardy. The petitioner here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e grounds on which they claimed exemptions and, therefore, as held by the Supreme Court in the decision in Northern Plastics Ltd., reported in 1998 (101) E.L.T. 549 (SC), such claim to exemption was a matter of belief of the assessee and would not amount to mis-declaration. (iv) The petitioner herein had followed all the procedures under the Central Excise Act and Rules, including clearance of goods on the prescribed clearance documents. There were no malafides on the part of the petitioner." The department does not appear to have challenged the decision of the Tribunal and that has become final. 8.In view of the findings of the Tribunal, it is not legal to prosecute the petitioner on the same facts and evidence. The decisions cited by the learned Senior Counsel for the petitioner, which were referred to earlier, squarely apply to the facts of the present case. The criminal proceedings against the petitioner herein cannot be sustained and are liable to be quashed. 9.In the result, all the petitions are allowed and the proceedings in EOCC Nos. 167 to 169 of 1996 on the file of Additional Chief Metropolitan Magistrate for Economic Offence Cases, Egmore, Madras, are qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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