BARKAT ALI ZAIDI, J. - (1.) A mother and son have challenged by the abovenoted two applications under section 482 Crimi ­nal Procedure Code, the maintainability of complaint filed by Deputy Commissioner of Customs and Central Excise, Noida against them in the Court of Special Judi ­cial Magistrate, Meerut. They are being heard together and Sri Gopal Swaroop Chaturvedi Senior Advocate, assisted by Sri Vinay Saran, advocate, Sri A.K. Nigam, Addl. Solicitor General of India, assisted by Sri S.S. Tiwari and S.K. Mishra, advocates for Central Excise and Sri Pravendra Ku ­mar, learned Addl. Government Advocate for the State have been heard.
(2.) M /s. Shahnaz Ayurvedic is manu ­facturing Ayurvedic Medicines under a drug licence for their two Units situated at Okhla New Delhi and Noida. In the year 1986, M/s. Shahnaz Ayurvedic had de ­clared before the Central Excise Depart ­ment that it was manufacturing Ayurvedic Medicines and no excise duty was leviable thereon, but the Excise Department had issued a show cause notice dated 2.3.1988 under section 11 -A of the Central Excise Act, 1944 (Hereinafter referred to as the 'Act') and contended that they were manu ­facturing cosmetics and not Ayurvedic Medicines. The Addl. Commissioner, Cen ­tral Excise upheld the contention of the applicants and the matter was closed vide order dated 29.8.1988. Again the contro ­versy arose and a show cause notice dated 14.7.1988 under section 11 -A of the Act was again sent by the Central Excise Depart ­ment to the applicants but the Assistant Commissioner, dropped the same by order dated 29.1.1992. In the year 1994 -95, again the matter arose when M/s. Shahnaz Ayurvedic filed classification list and price list alongwith his questionnaire in the de ­partment under the provisions of Rule 173 -B and 173 -C of the Central Excise Rules, 1944 (hereinafter be referred to as the 'Rules'), which Wt.s finally approved by the Assis ­tant Commissioner, Central Excise, New Delhi vide order dated 26.8.1994 for its Delhi Unit and by Assistant Commissioner, Noida vide order dated 20.12.1994 for its Noida Unit. Again the Central Excise Depart ­ment issued a show cause notice dated 28.7.1997, 1.4.1997 and 1.7.1997 raising the same controversy and the Commissioner Central Excise (Adjudication) vide order dated 7.8.1998, held that M/s. Shahnaz was producing cosmetic and not Ayurvedic Medicines and by invoking the provisions as contained in section 11 -A (i) of the Act, imposed Excise Duty amounting to Rs. 92,39,773/ - besides the interest recoverable under section 11 -A and 11 -B of the Act and also penalty amounting to Rs. 3,68,04,850/ -, on the aforenoted amount. The Adjudicat ­ing authority besides the above, also im ­posed the penalty of Rs. 50 lacs on M/s. Shahnaz Ayurvedic and Rs. 25 lacs on M/s. Shaherb Cosmetic under Rule 209 -A of the Rules.
(3.) THE order was challenged before the Central Excise Gold Appellate Tribunal (CEGAT in short) but despite the fact that appeals were pending, the Central Excise Department filed a criminal complaint against the applicants about their two units for having evadad payment of Excise Duty under section 9 of the Central Excise Act and also under section 420 I.P.C. in Crimi ­nal Court at Delhi and another at Meerut.;