Case called out in the revised list.
None is present on behalf of the revisionist.
Heard learned counsel for Union of India Sri C.S. Chaturvedi.
This revision has been preferred against judgment and order dated 20.08.1990 passed by Special Chief Judicial Magistrate, Kanpur rejecting the applications filed against the summoning order under Section 9, Central Excise & Salt Act, 1944, in Criminal Case Nos. 1496/1988, 1497/1988, 1498/1988 and 1499/1988.
Brief facts are that the complainant filed a complaint which was lodged against the accused revisionist, owner of firm M/s Jyoti Prasad Ram Bharose Lal Tobacco Warehouse whose licence number is 6/67. On 19.07.1976, the Excise Authorities have recovered 25 bags and 54 Bundle of tobacco on which duty was not paid. This tobacco was kept in the building adjoining primary school. The accused persons have informed that this tobacco was brought by some unknown persons and was kept it in the premise of revisionist. The tobacco was sealed on the spot. The co-partner Ram Bharose applied for provisional release of the tobacco on 21.08.1976. Later on a show cause notice was issued to the revisionist accused persons and the aforesaid tobacco was released in favour of accused persons on 15.03.1977. But as the accused had committed the offence, hence, complaint was submitted against the accused persons. The accused persons have filed objections to the cognizance and said that under Rule 32, vide notification no. 38/79-C-E dated 01.03.1979, Central Excise has been lifted from the tobacco and the provisions and rules in regard to tobacco will apply and no law can be said to be in retrospection.
Unless and until there is specification that the previous cases have been withdrawn, this case definitely cannot not be withdrawn. Even the Hon'ble High Court in 1982 ELT page 201, Allahabad has laid down that a provision under the amended Act does not mean that an accused will be entitled for acquittal in a previously convicted matter.
It has been argued on behalf of the Union of India that if the offences have been committed prior to 1979 and no penalty or levy has been imposed on him then it will not even stand deleted vide notification no. 38/79-C-E dated 01.03.1979 and all recoveries can be done according to the provisions of this Act because the notification dated 01.03.1979 is not retrospective.
Perusal of Section 2 of Act, 58/1982 and the judgment on record shows that tobacco was said to have been recovered from the possession of the accused. Although, it was released in his favour, but this will not absolve the accused from this liability. Thus all the offences committed before the year, 1976 will be punishable and the notification dated 01.03.1979 will not come to the rescue of the defendants.
I find that there is no illegality, irregularity or impropriety in the impugned order dated 20.08.1990, passed by Special Chief Judicial Magistrate, Kanpur.
Accordingly the present revision is dismissed.
Order Date :- 14.7.2014 sailesh