Chemical Construction Co. (P) Ltd. vs O.V. Nambiar

Arunachalam, J.—This is a second petition filed by the petitioners u/s 482 Cr. PC to call for the records and quash the pending prosecution

in T.O.C.C. No. 51 of 1982 on the file of the Additional C.M.M. E.O.I., Egmore, Madras, as not maintainable and one without jurisdiction.

Crl. M.P. No. 285 of 1982 was the first petition filed by the petitioners, wherein they had contended that the first petitioner was not liable to

pay duty under the Act, in view of the modification issued by the Government of India and further due to the pendency of a revision. It was also

contended that the allegations made in the complaint would not constitute any offence punishable under Rules 173-PP and 174 of the Central

Excise Rules read with Section 6 of the Central Excises and Salt Act, 1944, and therefore the proceedings should be quashed. K.M. Natarajan, J.

After elaborate consideration, held against the petitioners and dismissed the petition, with a reservation that it was open to the petitioners to put

forth all their contentions before the learned Magistrate.

Mr. G. Krishnan, learned Counsel for the petitioners, has placed before me two contentions. The first one is that there was an order dated 21-

8-1991 (sic) by the Government of India, staying as an interim measure, payment of duty adjudged by the Central Board, till the final disposal of

the said application. When the order of stay was in force, without disclosing it, the impugned complaint was filed on 31-10-1981. Therefore, when

stay of payment of duty had been made, this complaint cannot be maintained. The second contention is that charge No. 1 relating to non-obtaining

of an excise licence will also not be maintainable and this question will have to be scrutinised over again.

I have heard Mr. P. Rajamanickam, learned Counsel for respondent, on both these submissions. He pointed out, that the stay order, only

barred the collection of duty, but not the prosecution. In any event, he submitted that on the final disposal of the petitioners'' revision, the matter has

been remanded to the concerned Authority for fresh assessment of duty and fresh assessment proceedings are pending. He, therefore, contended

that on fresh assessment, it may be necessary to amend or alter the second charge which can always be done, at any point of time before

judgement is pronounced. As far as framing charge is concerned he submitted, that it had been rightly framed and the petitioners who were not

having any additional material, cannot once again agitate this question before this Court, when it has been held against them by K.M. Natarajan, J.,

in Crl. M.P. No. 285 of 1982.

I have carefully considered the rival contentions of both counsel. As far as the first charge is concerned, I entirely agree with the learned Counsel

for respondent that the same question cannot be raised over again without any fresh material being available. The first charge has to be necessarily

maintained. As far as the second charge is concerned, it is stated by both parties, that the matter has been remanded for fresh assessment. Framing

of second charge will naturally depend upon the outcome of the fresh assessment. I direct the Authority concerned to complete fresh assessment

within three months from today, and file the fresh order of assessment before the trial Court, to facilitate adding, amending or altering the charge,

depending upon the circumstances, after giving an opportunity to the petitioners, to place their arguments on the feasibility or otherwise of adding,

altering or amending the charge. Mr. G. Krishnan, also brought to my notice, that the order of the Central Board of Excise and Customs dated 3-

1-1981 holds, that non-payment of duty by the petitioners, was not intentional and on that score, penalty was waived in its totality. Therefore he

submitted this charge cannot stand, since mens rea has been negatived. This order is yet to be brought on record in evidence. It will not be possible

for this Court in the exercise of its inherent powers to look into documents which have not been brought on record. It will be open to the

petitioners to canvass the non-feasibility of this charge on the basis of the order of the Central Board of Excise and Customs, after the order is

produced in evidence. "" While declining to quash the pending proceedings, I direct stay of proceedings before the Additional C.M.M., E.O.I.,

Egmore, for a period of three months from today, within which time the concerned Authority shall pass fresh assessment orders and forward it to

the trial court on the basis of which the nature of charge under Head 2, will be decided, as indicated earlier. This petition is ordered accordingly.