P.A. Ameerajan Sahib vs Deputy Collector of Central Excise

S. Ramalingam, J.

The petitioner is a dealer in tobacco liable to pay central excise duty. His place of duty was inspected and it was found that certain quantity of

tobacco had been unauthorisedly removed. A show cause notice was issued on 19-3-1987 as to why levy of central excise should not be made

and after getting petitioner''s explanation an order of assessment was made on 12-9-1979.

At the same time the petitioner was also prosecuted for violation of the provisions of the Central Excises and Salt Act before the competent

magistrate''s Court which resulted in an order of acquittal of the petitioner. The revenue filed an appeal before this Court in C.A. No. 312 of 1983

and by judgment dated 11-9-1986 the acquittal was set aside and the case was remitted for fresh disposal in accordance with law. It is not known

at what stage the remanded criminal case is now. However, before final adjudication of the criminal case after remit the present writ petition was

filed when the petitioner was served with a notice threatening revenue recovery proceedings to recover a sum of Rs. 61,631.26 together with

penalty of about Rs. 2000/- for non-payment of the amount due under the assessment dated 12-9-1979.

The main contention in the writ petition is that when the petitioner had been simultaneously prosecuted for the very same act of illicit removal of

tobacco a duty payable item, and when those proceedings resulted in an order of acquittal originally and even as on the date of the filing of the writ

petition there was no conviction, the petitioner cannot be held to have committed any violation of the provisions of the Central Excises and Salt Act

and consequently, the very assessment is bad and much more so, the recovery proceedings.

By the mere fact that the petitioner had been acquitted by the trial Court in the criminal case it would not have the effect of nullifying the order of

assessment made on 12-9-1979. Since the amount as per the said proceedings have not been paid the respondents were right in issuing the

impugned demand notice threatening recovery proceedings. Therefore the writ petition is liable to be dismissed.

Mr. T. Chengalvarayan, learned senior counsel appearing for the petitioner, would submit that because the petitioner was acquitted in the

criminal case by the trail Court and even the appellate Court had not found the petitioner guilty of the violation of the provisions of the Central

Excises and Salt Act and the rules, the petitioner was lulled into the belief that the order of assessment made on 12-9-1979 would not be enforced

against him and hence he did not file the appeal. Taking a sympathetic view and in order to give the petitioner opportunity of an appeal, there will

be an order in this writ petition while dismissing the same, giving time to the petitioner till 31-10-1991 to file an appeal against the order of

assessment dated 12-9-1979. The appeal shall be taken on file and disposed of on merits on condition that the petitioner pays a sum of Rs.

20,000/- (rupees twenty thousand) as a condition precedent. The writ petition is dismissed with this liberty given to the petitioner. No costs.