G Rajappan, Proprietor, Devi Rubber Products, Karthikapally vs The DY. Commissioner of Central Excise, Headquarters, Preventive I S Press Road, Cochin 682018 and State of Kerala

Honourable Mr.Justice S. Siri Jagan

The petitioner is the accused in Calendar Case No. 9/2000 before the Additional Chief Judicial Magistrate Economic Offences, Ernakulam, which is a prosecution for alleged contravention of Section 9(1)(b)(bb)(bbb)(c) and (d) of the Central Excise Act. The department had initiated adjudication proceedings also in respect of the same subject matter. Initially, in the adjudication proceedings, the petitioner was exonerated but, in appeal by the department before the appellate authority, the matter was remanded to the original authority for reconsideration. The original authority, after re-adjudication, found the case to be true and imposed on the petitioner appropriate penalties as provided under the Central Excise Act. The petitioner challenged the same before the appellate authority, who again remanded the matter for fresh consideration. Thereafter, the adjudicating authority again found the petitioner guilty and imposed appropriate penalty. Against the same, an appeal is pending before the Appellate Authority now. In view of the proceedings in the adjudication proceedings in the first instance the petitioner filed C.M.P. No. 5065/2003 before the Additional Chief Judicial Magistrate for discharge of the petitioner. That was dismissed by the order impugned in this Criminal Revision Petition. The contention of the petitioner is on the basis of the decision of the Supreme Court in Radheshyam Kejriwal Vs. State of West Bengal and Another, . That was a case where the adjudication proceedings were finalised and the accused was found not guilty in the adjudication proceedings. Admittedly, in this case, the adjudication proceedings have not yet been finalised. Therefore, the ratio of the decision in Radheshyam Kejriwal''s case (supra) cannot now be pressed into service at least for the present until the adjudication is finalised. When this was pointed out, the learned counsel for the petitioner seeks permission to withdraw this Criminal Revision Petition without prejudice to the right of the petitioner to press into service the ratio of the decision in Radheshyam Kejriwal''s case (supra) before the Chief Judicial Magistrate as and when occasion arises.

Accordingly, the Criminal Revision Petition is dismissed as withdrawn with the above liberty.