JUDGMENT R.A. Misra, J.
1. M/s. Danfoss (India) Ltd., Meerut Road, Ghaziabad, respondent no. 1 are manufacturers in Air Conditioning Machinery and Shri L. Lal, respondent no. 2 is their Material Manager. Air Conditioning Machinery is excisable under item No. 29-A, First Schedule of Central Excise Act, 1944. The Assistant Collector, Central Excise, Ghazibad checked the premises of M/s. Danfoss (India) Ltd., Meerut on 27-4-1973 and found the original copies of the gate pass no. 297, dated 25-4-1973 to gate pass no. 307, dated 26-4-1973, lying in the premises of the factory though the goods noted in those gate passes had been removed out of the factory on 25th and 26th April, 1973 and that was a breach of Rule 52-A of the Central Excise Rules. The Assistant Commissioner Excise detected that no entry in the Personal Ledger Account (P.L. A.) was made in respect of the gate pass nos. 304 to 307 issued on 26-4-1973 and this amounts to breach of Rule 9(1) and 173-F of the Central Excise Rules. A complaint was, therefore, filed against the respondent on 23rd October, 1973.
2. The prosecution examined Mathur Lal Chaudhary (P.W. 1), Ved Prakash Rastogi (P.W. 2) and closed the evidence. The accused examined K.V. Panicker (D.W. 1), R.C. Mathur (D.W. 2) in defence. The learned Magistrate on a consideration of the entire evidence on record arrived at the conclusion that no offence punishable under the Act or Rules has been established against the respondents beyond doubt though they appear to have committed a few minor irregularities. He has consequently acquitted them but after a warning for the minor irregularities. The complainant has preferred this appeal against the order of acquittal.
3. Rule 52.-A of the Central Excise Rules provides :
"52-A. Goods to be delivered on gate pass-(1) No excisable goods shall be delivered from a factory except under a gate pass in the proper form or in such other form as the Collector may in any particular case or class of cases prescribe signed by the owner of the factory and countersigned by the proper officer.
(2) The gate pass shall be made out in triplicate with indelible pencil using double sided carbon and shall contain no multilations, overwriting corrections or erasures. The gate passes shall be presented to the proper officer for counter-signature at least one hour before the actual removal of the goods from the factory. After counter-signature the proper officer shall return the original and triplicate copies of the gate pass to the manufacturer retaining the duplicate for his record. The original copy shall accompany the consignment to its destination and triplicate retained by the manufacturer. The manufacturer may, with the approval of the proper officer make extra copies of a gate pass for his own use clearly marked "EXTRA COPY NOT FOR COVERING TRANSPORT". The original copy shall be produced by the carrier, on demand by the Central Excise Officer while the goods are en route to such destination from the factory :
Provided that in respect of removal of exisable goods consumed within the factory for manufacturer of other goods in a continuous process, the manufacturer may make out a single gate pass at the end of the day.
(3) If all the packages comprising a consignment are despatched in one lot at any one time, only one gate pass shall be made out in respect of the consignment. If, however, a consignment is split up into two or more lots each of which is despatched separately either on the same day or on different dates, a separate gate pass shall be made out in respect of each such lot. In case a consignment is loaded on more than one vehicle, vessel, pack, animal or other means of conveyance which do not travel together but separately or at intervals, a separate gate pass shall be made out in respect of each vehicle, vessel or pack animal or other conveyance.
(4) Gate passes shall be maintained in two sets : one for clearance for home consumption and the other for clearance for export. Each gate pass shall bear a printed serial number running for the whole year beginning on the 1st January or such other date as approved by the proper officer as may correspond to the accounting year of the factory. Only one gate pass book of each type shall be used by a factory for an excisable commodity at any one time unless otherwise especially permitted by the Collector in writing in respect of factories having more than one section from which clearances take place.
(5) If any person ;
(a) carries or transports excisable goods from a factory without a valid gate pass; or
(b) while carrying or removing such goods from a factory, does not on request by any officer forthwith produce a gate pass; or.
(c) enters any particulars in the gate pass which are, or which he has reason to believe to be false, He shall be liable to a penalty not exceeding one thousand rupees and the excisable goods in respect of which the offence is committed shall be liable to confiscation."
4. Section 9(1)(bb) of the Central Excise Act provides -
"Whoever commits any of the following offences, namely-
X X X X (bb) removes any excisable goods in contravention of any of the provisions of this Act or any rule made thereunder or in any way concerns himself with such removal;
5. Sub-clause (bb) has been inserted with effect from 1st September, 1973 and in the case before me the appellants are alleged to have committed the breach of Rule 52-A in April, 1973 so it is not possible to punish the respondent for breach of rule Under Section 9(1)(bb) of the Central Excise Act even if the breach of rule is proved.
6. The evidence on the record showed that the Assistant Excise Commissioner did not find that any excisable goods were delivered from the factory without a gate pass. There is nothing on the record to show that the original copy of the gate pass did not accompany the consignment to its destination. The material exhibits on the record show that the Assistant Commissioner found two copies of each gate pass. The learned counsel for the appellant has failed to point out that the respondents have committed breach of Rule 52-A in any manner whatsoever. The complainant thus has failed to prove beyond doubt that the respondents have committed breach of Rule 52-A of the Central Excise Act, 1944.
7. It is proved and has been admitted that the gate pass nos. 304 to 307 was not actually debited in the Personal Ledger Account (P.L.A.) but this does not in any way amount to non-payment of the excise duty or evasion thereof in any manner. The witnesses produced by the complainant have admitted that the excise duty has actually been paid on those gate passes and it is not a case of non-payment of the excise duty. It was a case of minor irregularity in not debiting the excise duty in the personal ledger register and the view taken by the Court below that it amounts to a minor irregularity is reasonable. In the result, the complainants have failed to prove that the respondents are guilty of evasion of excise duty.
8. The learned Magistrate has given good reasons for arriving at the conclusions and acquitting the respondents after a warning. In the result, I see no force in this appeal against the order of acquittal. It shall therefore be dismissed.
9. The appeal is dismissed.