Om Prakash, J. - (1.) This criminal revision has been filed with the prayer to quash the order dated 9.10.2015 passed by Special Chief Judicial Magistrate, Kanpur Nagar in Complaint Case No. 841 of 2014, (Union of India Vs. Rimjhim Ispat and others) under Sec. 9/9AA of the Central Excise Act, 1944, Police Station Sumerpur, District Hamirpur. Further prayer has been made to stay further proceedings of the aforesaid case.
(2.) Heard Shri V.K. Upadhya, learned Senior Counsel assisted by Shri Ritvik Upadhya, learned counsel for the revisionists and Shri B.K. Singh Raghuvanshi, learned senior standing counsel appearing for the Department -opposite party No. 1 as well as the learned A.G.A. appearing for the opposite party No. 2.
(3.) Sri Vinod Kumar Upadhya, learned Senior Counsel assisted by Sri Ritvik Upadhya, learned counsel for the revisionists submitted that the present complaint in the present form cannot go -on against the revisionists. The order dated 9.10.2015 passed by the concerned Magistrate is illegal. No ground exist to continue with the complaint. Seizure was made in the year 2007. The order passed by the Adjudicating Authority i.e. Commissioner Central Excise, Kanpur was set -aside by the Customs, Excise and Service Tax Appellate Tribunal New Delhi (CESTAT). This Court in the Writ Tax No. 771 of 2015 quashed the proceedings started for realization of the excise duty/tax penalties and remitted the matter back to the Commissioner Central Excise Lucknow to decide afresh. Earlier, the revisionists vide application u/s. 482 No. 31300 of 2014 approached this Court against the order passed in the complaint and this Court by the order dated 21.8.2014 directed the revisionists to move discharge application. In compliance of the said order, the revisionists moved discharge application before the concerned Magistrate but the Court below placing reliance on the subsequent order dated 28.8.2015 passed by the Commissioner Central Excise Kanpur Nagar illegally rejected the discharge application. It was further submitted that the order dated 28.8.2015 could not be taken as piece of evidence for the seizure made in the year 2007. It was further argued that the criminal prosecution in the present matter could also not go on for the reason that the departmental proceeding started against the revisionists to realize the fine/tax has been quashed. Thus, there was no ground to proceed with the complaint and there was also no fresh sanction on which basis complaint could be proceeded with. In support of the arguments, learned counsel for the revisionists placed reliance on the following case laws: 1. Radheyshyam Kejriwal Vs. State of West Bengal in : (2011) 3 Supreme Court Cases 581. Though, 2011 Volume (266) ELT Page 294 (SC). 2. J.P. Tobacco Products Private Limited Vs. Assistant Collector of Central Excise (M.P.) reported in, 2008 (229) ELT 325.;