{"id":169444,"date":"2008-05-14T00:00:00","date_gmt":"2008-05-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-jayagopal-vs-the-assistant-commissioner-of-on-14-may-2008"},"modified":"2015-02-13T08:17:24","modified_gmt":"2015-02-13T02:47:24","slug":"a-jayagopal-vs-the-assistant-commissioner-of-on-14-may-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-jayagopal-vs-the-assistant-commissioner-of-on-14-may-2008","title":{"rendered":"A. Jayagopal vs The Assistant Commissioner Of … on 14 May, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
A. Jayagopal vs The Assistant Commissioner Of … on 14 May, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 14\/05\/2008\n\nCORAM\nTHE HONOURABLE MR. JUSTICE S. NAGAMUTHU\n\nCRL. O.P (MD)No.17682 of 2002\n\nA. Jayagopal,\nS\/o. Anand Alwar,\n1667 H Block 9th Street,\nAnna Nagar,\nChennai - 600 040.\t\t\t  ..... Petitioner\n\nVs\n\nThe Assistant Commissioner of Central\nExcise (Legal),\nOffice of the Commissioner of Central\nExcise,\nCentral Revenue Building,\nMadurai. \t \t\t\t  ..... Respondent\n\n\t\tCriminal Original Petition filed under Section 482 Cr.P.C., to call\nfor the records and to quash the proceedings in C.C.NO.13 of 2002 on the file of\nthe Additional Chief Judicial Magistrate, Madurai.\n\n!For Petitioner ... Mr.   B. Kumar\n\t\t\t   Senior Counsel for\n\t\t\t   Mr.   M. Ramasamy\n^For Respondent\t... Mr.   C. Arul Vadivel alias Sekar\n\t\t          Special Public Prosecutor\n:ORDER\n<\/pre>\n
\t\tSeeking to quash the private complaint in C.C.No.13 of 2002 on the
\nfile of the learned Additional Chief Judicial Magistrate, Madurai, the
\npetitioner, who is the one of the accused in the said case has come forward with
\nthis petition under Section 482 Cr.P.C.\n<\/p>\n
\t\t2. Admittedly, the petitioner was employed as Senior Marketing
\nExecutive in a company known as M\/s. Indian Aluminium Company Limited (in short
\nhereinafter referred to as “INDAL”) at Chennai. Yet another company known as
\nM\/s. Shree Meenatchi Aluminium Extrusions Limited, Madurai (in short hereinafter
\nreferred to as “SMALEX”) was engaged in the manufacture of Aluminium Extrusions
\nat Vellaripatti in Madurai District.\n<\/p>\n
\t\t3. According to the allegations in the complaint, INDAL is the real
\nmanufacturer of Aluminium extrusions in terms of Section 2(f) of Central Excise
\nAct 1944\tand by suppressing the said fact, INDAL has engaged SMALEX by means
\nof a Memorandum of understanding for getting their goods manufactured on job
\nwork basis and cleared the same without payment of appropriate duty on the
\nactual value as per Section 4 of the Central Excise Act read with Central Excise
\n(Valuation) Rules 1975. The Central Excise Officers verified the documents and
\nrelevant records on 01.10.1996, during which several documents including the
\nMemorandum of understanding were recovered. On perusal of the invoices and the
\ndocuments, it came to light that on the raw materials supplied by INDAL, on job
\nwork basis SMALEX manufactured Aluminium extrusions and delivered the finished
\ngoods to the customers of INDAL as per the directions of INDAL. The Memorandum
\nof Understanding between SMALEX and INDAL reads as follows:-\n<\/p>\n
\t\t“(i) the covenants of the manufacturer (i.e.,) SMALEX are as
\nfollows:-\n<\/p>\n
\t(a) SMALEX shall receive the raw materials supplied by INDAL along with
\nexcise invoice, delivery challan and sales tax form, SMALEX shall take Modvat
\ncredit for the same.\n<\/p>\n
\t(b) SMALEX shall thoroughly study the details of orders placed by INDAL
\nand draw out time bound production plan and intimate the same to INDAL.\n<\/p>\n
\t(c) SMALEX shall manufacture the product and will also adhere to the
\nschedule given by INDAL in this respect from time to time.\n<\/p>\n
\t(d) SMALEX shall keep the finished products in the manner as prescribed by
\nINDAL to avoid damage or mix up with other goods.\n<\/p>\n
\t(e) SMALEX will adhere to the quality control requirement as per
\nspecifications given by INDAL and also as per the sectional drawings supplied by
\nINDAL.\n<\/p>\n
\t(f) SMALEX will furnish weekly statement \/ report of the stock of the
\nextrusion and raw materials shipped to INDAL.\n<\/p>\n
\t(g) SMALEX will provide secretarial services to INDAL for documentation as
\nand when required.\n<\/p>\n
(ii) The owners (ie) INDAL hereby covenants to SMALEX as follows:-\n<\/p>\n
\t(a) communicate with SMALEX regarding size, profiles, sections or solids
\nto be extruded from the raw materials supplied by INDAL. INDAL shall intimate
\nSMALEX regarding technical specifications such as tolerances on dimensions,
\nweight, length other technical details etc.,\n<\/p>\n
\t(b) despatch the raw material to SMALEX with a delivery challan, excise
\ninvoice and the relevant sales tax form prescribed by the State Government
\nconcerned.\n<\/p>\n
\t(c) INDAL shall assess the order position and accordingly decide upon the
\nproduction schedule specification and requirement of raw material in
\nconsultation with SMALEX.\n<\/p>\n
\t(d) INDAL shall intimate SMALEX regarding despatch details such as
\nparticulars of the customer to whom the extrusions have to be despatched sales
\ntax numbers, insurances, method of packing and other information like choice of
\ntransporters etc., in details and intimate SMALEX regarding the delivery date
\nwhile placing the order”.\n<\/p>\n
\t\t4. In paragraph 14 of the complaint, it is stated thus:-
\n\t\t“Thus, it is well established that A1 manufactured the Aluminium
\nExtrusions on job work basis during the period from 01.04.1994 to 30.09.1996 as
\nthe agent of A3. Since the goods were manufactured on account of A3, A3 is the
\nreal manufacturer of the above said goods in terms of Section 2(f) of Central
\nExcise Act 1944. A3 had never disclosed the existance of Memorandum of
\nUnderstanding between  A1 and A3 to the Central Excise Department and evaded
\npayment of Central Excise duty to the tune of Rs.38,22,550\/- during 01.04.1994
\nto 30.09.1996. The said failure in compliance with the provision of Central
\nExcise Law to the extent was intentional on the part of A-1 to A-4 and the
\nCentral Government was deprived of legitimate revenue to the tune of
\nRs.38,32,550\/- during the said period and thereby A-1 to A-4 have committed
\noffences covered under Section 9(1)(a), 9(1)(b), 9(1)(bb) and 9(1)(c) of the
\nCentral Excise Act 1944 read with Rules 9(1), 52A, 173G, 173 F, 174 and 226 of
\nCER 1944. Accordingly, A1 to A4 are punishable under Section 9(1)(a)(i),
\n9(1)(b)(i), 9(1)(bb)(i) and 9(1)(c)(i) of Central Excise Act 1944 read with
\nSection 9AA”.\n<\/p>\n
Based on the above materials collected during verification and on the basis of
\nthe statements recorded from various persons, including the petitioner, the
\nrespondent laid the private complaint before the learned Additional Chief
\nJudicial Magistrate, Madurai against a total number of six accused.  The first
\naccused is SMALEX company; the second accused is the Project Manager of the
\nSMALEX; the third accused is INDAL ; the fourth accused (the petitioner herein)
\nis the Senior Marketing Executive in INDAL; the fifth accused is another company
\nknown as M\/s. Agents Aluminium Co., Ltd., and the sixth accused is the Director
\nof the fifth accused. The offences said to have been committed are punishable
\nunder Sections 9(1)(a), 9(1)(b), 9(1)(bb), 9(1)(c), 9(1)(d) of Central Excise
\nAct 1944 read with Rules 9(1), 52A, 53, 173 C, 173 G, 173 Q, 226 of the Central
\nExcise Rules 1944  read with Section 9AA.  It appears that the case against
\nINDAL and the SMALEX was split up separately in which the petitioner is the
\nsecond accused, which is now pending before the learned Additional Chief
\nJudicial Magistrate, Madurai. Seeking to quash the same, the petitioner has come
\nforward with this petition.\n<\/p>\n
\t\t5. Admittedly, a show cause notice dated 14.08.2007 was issued,
\nwherein  demand for an amount of Rs.38,32,550.00 from INDAL as differential duty
\non aluminium extrusions manufactured and cleared from the factory premises of
\nSMALEX under INDAL’s invoices covering the period from 1994-95 to 1996 – 97
\n(upto 30.09.1996) by invoking the proviso to Section 11A(1) of the Central
\nExcise Act, 1944 was made and also to recover interest under Section 11AB;
\nimpose penalty under Section 11AC and under erstwhile rules 9(2) and 173 Q of
\nCentral Excise Rules, 1944; demand an amount of Rs.4,450 as differential duty
\nfrom SMALEX on the clearances effected from their premises to the customers of
\nAACL using the latters’ invoices by invoking the proviso to Section 11 A(1) of
\nthe Central Excise Act, 1944, recover an amount of Rs.84,499.00 from SMALEX
\ntowards the shortage of modvated inputs, penalise SMALEX under Section 11AC and
\nunder erstwhile rules 9(2) and 173Q of Central Excise Rules, 1944 and also under
\nerstwhile rule 209 A, and to penalise AACL under erstwhile Rule 209A. The
\ndetails pertaining to the demand proposed were given in Annexures A to C to the
\nShow Cause Notice.\n<\/p>\n
\t\t6. Thereafter, a final order was made by the Commissioner of Central
\nExcise, Madurai, directing the first accused INDAL to pay the amount  under
\nSection 11A(2) of the Central Excise Act, 1944. The Company, viz., INDAL
\nchallenged the same before the Customs, Excise and Gold (Control) Appellate
\nTribunal, South Zonal Bench at Madras.  The Bench, by order dated 14.01.1999 set
\naside the order of the Commissioner and remanded the matter back to the
\nCommissioner for fresh disposal. On such reconsideration, the Commissioner, by
\norder dated 29.01.2002 has passed the following order:-
\n\t“35. In view of my foregoing findings, it is ordered as under:-\n<\/p>\n
\t(i) I hereby hold INDAL as the manufacturers of goods. However the
\nproceedings initiated for recovery of differential duty are dropped on grounds
\nof limitation. Consequently the proceedings initiated against INDAL for recovery
\nof interest and for imposition of penalty also abate;\n<\/p>\n
\t(ii) The penal proceedings proposed on SMALEX under erstwhile rule 209A
\nare hereby dropped;\n<\/p>\n
\t(iii) I hereby confirm an amount of Rs.4,450.00 (Rupees Four Thousand four
\nhundred and fifty only) under Section 11A(2) of the Central Excise Act, 1944 as
\ndifferential duty on SMALEX towards the goods cleared to buyers under AACL’s
\ninvoices, by invoking the larger period of limitation under the proviso to
\nSection 11A(1). The amount of Rs.4,450.00 paid under T.R.Challan No.23\/97-98
\ndated 19.01.1998 is adjusted towards the same after vacating the protest;\n<\/p>\n
\t(iv) I hereby confirm an amount of Rs.84,499.00 (Rupees Eighty Four
\nThousand Four Hundred and ninety nine only) on SMALEX under erstwhile rule 57(2)
\nread with erstwhile rule 57(1) of Central Excise Rules, 1944 by invoking the
\nlarger period of limitation under the Proviso to Section 11A(1) of the Central
\nExcise Act, 1944. The amount of Rs.84,499.00 paid under T.R.Challan No.24\/97-98
\ndated 19.01.1998 is adjusted towards the same, after vacating the protest;\n<\/p>\n
\t(v) I impose a combined penalty of Rs.5,000\/-  (Rupees Five Hundred only)
\non SMALEX under erstwhile rules 9(2), 173Q and 226 of Central Excise Rules,
\n1944.\n<\/p>\n
\t(vi) I impose a penalty of Rs.1,500.00 (Rupees One Thousand Five Hundred
\nonly) on AACL under erstwhile rule 209A of Central Excise Rules, 1944.”\n<\/p>\n
\t\t7. In the meantime, this private complaint was launched before the
\nlearned Additional Chief Judicial Magistrate, Madurai in the year 2002 i.e.,
\nsome time before the order dated 29.01.2002 was passed by the Commissioner. Now,
\nit is urged that the private complaint is liable to be quashed since the
\nCommissioner of Central Excise in the order referred to above has dropped the
\nrecovery of differential duty and also the penal proceedings.\n<\/p>\n
\t\t8. A detailed counter has been filed by the respondent wherein it
\nhas been stated that the proceedings were dropped by the Commissioner only on
\nthe ground of limitation and therefore that will not have any effect in the
\ncriminal prosecution launched against the petitioner. It has been further stated
\nthat the Commissioner in the order referred to above has clearly held that INDAL
\nis the manufacturer and so, the failure of the petitioner and INDAL to comply
\nwith the provisions of Sections 9(1)(a), 9(1)(b), 9(1)(bb), 9(1)(c) and 9(1)(d)
\nof the Central Excise Act, 1944 would amount to offences.\n<\/p>\n
\t\t9. I have carefully considered the rival submissions.\n<\/p>\n
\t\t10. A careful scrutiny of the materials available on record,
\nincluding the final order made by the Commissioner of Central Excise in his
\nproceedings C.No.V.\/76\/15\/40\/97.Adjn. dated 29.01.2002 would go to show that the
\nCommissioner has held that INDAL is the manufacturer of the goods. There is also
\nno dispute that the petitioner is the Senior Marketing Executive of the said
\nCompany, who is responsible for the day to day affairs of the company. Under
\nSection 9(1)(a) of the Act, if any one contravenes any of the provisions of
\nSection 8, then it is an offence. Prima facie, in this case there are
\nallegations that as per the findings of the Commissioner of Central Excise,
\nINDAL was found in possession of excisable goods at the premises of  SMALEX in
\nviolation of Section 8 of the Act. Thus, there is a prima facie case, making out
\nan offence punishable under Section 9(1)(a) of the Act. Similarly, evasion of
\npayment of any duty payable under this Act is punishable under Section 9(1)(b)
\nof the Act. As found by the Commissioner in his final order and also from the
\nstatement of the petitioner as well as the other persons, there are materials to
\nshow that INDAL manufactured goods at the premises of SMALEX, sold away the same
\nto various customers during the relevant period and did not pay the duty in time
\nand thus, there is evasion of payment of duty. Thus, there are strong materials
\navailable making out a prima facie case.\n<\/p>\n
\t\t11. The next penal provision is Section 9(1)(bb) of the Act. It says
\nthat removal of excisable goods in contravention of any of the provisions of the
\nAct or any rules is punishable. In this case, as stated above, there are
\nmaterials to make out a prima facie case that excisable goods which were
\nmanufactured by INDAL at the premises of SMALEX at Madurai were sold to various
\ncustomers and they were also removed. The statement of the carrier of the goods
\nviz., one Mariyappan, Branch Manager of Rajalakshmi Transport, Madurai would go
\nto show that he used to take delivery of Aluminium finished goods from SMALEX
\nand transported the same to various destinations and when the consignments were
\nloaded in his lorries, the consignor’s name was always indicated as INDAL in the
\nway bills as well as in the outward Register. These materials would make it
\nclear that excisable goods were removed from SMALEX premises by INDAL in
\ncontravention of the provisions and thus, there is no reason to quash the
\nproceedings in respect of the offence under Section 9(1)(bb) of the Act.\n<\/p>\n
\t\t12. In respect of the offence under Section 9(1)(c), it is to be
\nseen that failure to supply any information to the Central Excise Department is
\nan offence punishable under this provision. In this case, there are materials to
\nshow that information regarding manufacture of aluminium extrusions by INDAL at
\nthe premises at SMALEX were not allegedly submitted to the Department. Thus,
\nthere are prima facie allegations making out offences punishable under Sections
\n9(1)(c) and 9(1)(d) of the Act.\n<\/p>\n
\t\t13. The learned Senior Counsel for the petitioner would submit that
\nsince the proceedings for recovery of the amount, including the penal
\nproceedings have been dropped as per the order of the Commissioner, the private
\ncomplaint is liable to be quashed. But, I am not able to agree with the said
\nargument advanced for the simple reason that as per Section 11-A of the Act,
\nrecovery of any duty which has not been levied or paid should be made within a
\nperiod of one year from the relevant date. The Commissioner in his order, though
\nhas held that INDAL is the manufacturer and therefore liable to pay the duty,
\nstill he has ordered for dropping of the proceedings only on the ground of
\nlimitation. If the Commissioner has given a finding that INDAL is not the
\nmanufacturer and therefore INDAL is not liable to pay any duty, then, there will
\nbe every force in the argument of the learned Senior Counsel, requiring this
\nCourt to accept the said argument. On the other hand, as stated above, in this
\ncase, the Commissioner has specifically held that INDAL is the manufacturer. The
\nGovernment has been put to loss only on the ground of limitation. When the
\nCommissioner has so held that INDAL is the manufacturer, it goes without saying
\nthat INDAL and the persons in charge of the company are liable to comply with
\nthe provisions of the Act.\n<\/p>\n
\t\t14. The learned Senior Counsel would rely on an unreported judgment
\nof this Court in Crl.O.P.No.35264 of 2005 dated 13.12.2006 (M\/s.Together Textile
\nMills ..Vs.. The Deputy Commissioner of Central Excise), wherein a learned
\nSingle Judge has quashed the private complaint on the ground that the order
\nlevying duty made by the Commissioner was set aside by the Appellate Authority
\nand when the matter is so pending before the Commissioner for adjudication, on
\nremand, private complaint for non-payment of duty is not maintainable. But, in
\nthe case on hand, final order has been passed by the Commissioner wherein he has
\nclearly stated that INDAL is the manufacturer. So, the argument advanced by the
\nlearned Senior Counsel that the private complaint is liable to be quashed in
\nview of the order passed by the Commissioner cannot be accepted at all.\n<\/p>\n
\t\t15. The next ground raised by the learned Senior Counsel is that the
\nCentral Board of Excise and Customs, New Delhi by letter F.No.208\/31\/97-CX.6,
\ndated 12.12.1997 has enhanced the monetary limit to launch prosecution from Rs.5
\nlakhs to Rs.25 lakhs prospectively so as to ensure better utilization of man
\npower, time and resources of the Department. Relying on the said letter, the
\nlearned Senior Counsel would submit that since the levy in this case is for less
\nthan Rs.25 lakhs, the prosecution is liable to be quashed. The learned Senior
\nCounsel would rely on a Judgment in Laxmi Narayan Sharma ..Vs.. Superintendent,
\nC. Ex & Cus. reported in 1996 (87) E.L.T. 345 (Raj) to substantiate his
\ncontention that such circulars are binding on the officers of the Central Excise
\nDepartment.\n<\/p>\n
\t\t16. Of course, it is true that in the said circular, the Board has
\ninstructed the officers of the Central Excise Department to launch prosecution
\nagainst persons where the monetary limit exceeds Rs.25 lakhs. But, in my
\nconsidered opinion, such a circular is not binding on the criminal Court as held
\nby the Hon’ble Supreme Court in The Assistant Collector of Customs, Bombay ..Vs.
\nMelwani reported in A.I.R. 1970 S.C. 962 and this Court in South India Surgical
\nCompany ..Vs.. K. Govindan, The Income Tax Officer  reported in 2001 M.L.J.
\n1031.  In my considered opinion, the said circular has got no relevance to the
\nfacts of the present case at all. If it is a case relating to prosecution in
\nrespect of non payment of duty alone, then the circular may be utilised by the
\naccused. But, in this case, the Prosecution is not only for evasion of duty but
\nalso for non-furnishing of the information etc., which have got nothing to do
\nwith the monetary limits mentioned in the circular. That apart, the said
\ncircular is not binding on the Criminal Court. Under the provisions of the Act,
\nthe offences stated in the complaint are cognizable. There are no fetters on the
\npower of the Court as mentioned in Section 190 Cr.P.C., to take cognizance of
\nthese offences enumerated in the complaint. By means of such a Circular, no
\nAuthority shall have the power to curtail the jurisdiction of a Judicial
\nMagistrate to take cognizance of an offence on a private complaint.  Therefore,
\nthe argument of the learned Senior Counsel that the lower Court ought not to
\nhave taken cognizance on the private complaint since the respondent is precluded
\nfrom launching such a prosecution in view of the circular cannot be countenanced
\nat all.\n<\/p>\n
\t\t17. Thus, this Court is of the considered opinion that prima facie
\nmaterials are available on record, requiring full fledged trial by the learned
\nJudicial Magistrate. I do not find any valid ground to quash the proceedings.
\nHence, this Criminal Original Petition is dismissed.   However, considering the
\nfact that the case has been pending for about six years, the Trial Court is
\ndirected to dispose of the same as expeditiously as possible. It is also made
\nclear that the Trial Court shall not get influenced by any of the observations
\nmade by this Court in this order.\n<\/p>\n
Dpn\/-\n<\/p>\n
To:\n<\/p>\n
1. The Additional Chief Judicial Magistrate,
\n    Madurai.\n<\/p>\n
2. The Assistant Commissioner of Central
\n    Excise (Legal),
\n    Office of the Commissioner of Central
\n    Excise,
\n    Central Revenue Building,
\n    Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court A. Jayagopal vs The Assistant Commissioner Of … on 14 May, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14\/05\/2008 CORAM THE HONOURABLE MR. JUSTICE S. NAGAMUTHU CRL. O.P (MD)No.17682 of 2002 A. Jayagopal, S\/o. Anand Alwar, 1667 H Block 9th Street, Anna Nagar, Chennai – 600 040. ….. Petitioner […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-169444","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nA. 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