Satyanarayan Mishra vs Assistant Collector, C. Excise

L.P.N. Shahdeo, J.—This revision is directed against the judgment of Shri B.C. Jha, Judicial Magistrate, 1st Class, Ranchi who had convicted the petitioners u/s 9(B) of the Central Excise Act (the Act) and sentenced both of them to undergo R.I fox six months. He further convicted petitioner No. 2, Bindeshwari Pd. Roy to pay a fine of Rs. 1000/- (one thousand) in default, further R.I. for two months. Both the petitioners had preferred appeal before the Judicial Commissioner, Ranchi which was heard by the 2nd Addl. Judicial Commissioner, Ranchi in Cr. Appeal No. 73/81 who confirmed the judgment and sentence and dismissed the appeal on 11-6-1985. Thereafter, the petitioners have challenged the judgments of both the courts below in this revision application.

Mr. Narayan Roy, learned counsel appearing on behalf of the petitioners, has submitted that removal of tobacco from the warehouse which was already assessed to tax, does not amount to an offence of evasion of duty for which they could not have been convicted u/s 9(B) of the Act. It was submitted that non-payment of duty would not amount to evasion of duty even though the tobacco, so removed, was assessed to duty as the duty was realisable under the Act and the Rules.

On the other hand, Mr. Debi Prasad, learned counsel appearing for the opposite party, has submitted that the petitioners has not paid the duty and had removed the tobacco which, in substance, amounts to evasion of duty.

It appears that similar matter had come up for consideration before this Court in Cr. Revision No. 212/85 (R) which was disposed of on 21-12-1989. It was held by this Court that the word ''evades'' the payment of excise duty under the Act, does not include such nature of goods which were already assessed to excise duty. The word ''evades'' means some method, device or some arrangement or other device resorted to for payment with a view to escape payment of duty. It suggests underhand dealings. It was, therefore, found that mere non-payment of duty which has been assessed, cannot amount to evasion as contemplated in Section 9(B) of the Act specially in view of the fact that Section 11 by itself and Rule 144 provides procedures for recovery of excise duty by the Government under the Act or the rules.

In this case also the allegation is that the petitioners had surrup-tiously removed the chewing tobaccos and evaded payment of certain amount and had transported the same from the warehouse without any transport permit and without payment of duty. The petitioner Bindeshwari Pd. Roy had evaded payment of another sum of Rs. 4,881.00 on 16.27 Kgs. of chewing tobaccos by illegally clearing and receiving the same without any transport permit from and without payment of duty thereon. Similar allegations had been made with respect to evasion of tax in collusion with the petitioners.

As found above, non-payment of duty on such goods which were already subjected to excise duty, though they had come to the warehouse but its subsequent removal from the warehouse either without permit or in some other way or method, cannot be included within the meaning of evasion of excise duty. Those goods were already assessed to excise duty and if excise duty is not paid, the Government or the concerned officers can easily realise the arrears of duty or the duty which the person is liable to pay in accordance with the procedures prescribed under the Act or the rules. Therefore, the basis of conviction of the petitioners u/s 9B of the Act, in the facts and circumstances of this case, does not arise as the alleged omission or commission committed by the petitioners, does not come within the definition of evasion of tax which is punishable only u/s 9B of the Act. Therefore, the conviction of the petitioners u/s 9B of the Act must be held to be erroneous and void and on this ground alone, in my opinion, this revision must succeed.

Mr. Devi Prasad argued that because the petitioner had not paid tax assessed, therefore, the facts of the aforesaid case is not applicable to the present case. In my view, this cannot be accepted as correct. The decision was given not on the basis of non-payment of tax but on the basis of what the word ''evasion'' or ''evades'' means. It was found that mere non-payment of duty which has already been assessed, cannot amount to evasion as contemplated u/s 9(B) of the Act. The petitioners, in this case, have not been convicted for contravention of any permit and Section 9(B) of the Act is not intended for that.

In the result, for the reasons stated above, this revision is allowed. The judgment of conviction and sentence passed by both the courts below are set aside.