- (1.) MESSRS K. C. Vanaspati is a duly registered firm and is an assessee under the various Acts including the Central Excises and Salt Act, 1944 (for short 'the Act')- The said firm is a licensed unit and is engaged in the manufacture of vegetable products falling under Tariff Item No. 13. Accused-respondents 2 to 7 are incharge and responsible for the conduct of the business of the firm. The audit party during its visit to the factory of accused No. 1 (the present petitioner) in the month of August and November, 1983, noticed that its partners accused respondents Nos. 1 to 7 were recovering additional amounts shown as distribution charges and levies from their dealers over and above the control price and they were not paying any Central Excise duty on those additional charges. The Range Officer, Jammu created certain demands of excise duty for the period from September 1, 1981 to March 31, 1983. The partners of the said firm-accused No. 1, however, stopped this practice of charging additional amounts after 1983. On its next visit, the headquarters audit-party in August, 1985, detected that these accused had changed the modus operandi and were issuing debit notes to their dealers in lieu of the so-called distribution charges and levies. The firm through Shri Ganesh Dass, accused No. 2 was asked to produce the sale ledger that the same was not produced before the audit-party on the plea that the said ledger was with the Dealing Assistant, who was reported to be not available in the factory. The audit party also noticed that accused Nos. 8 and 10 were lifting the entire stocks of products of accused No. 1 and that accused Nos. 8 and 10 were self-floated bogus firms existing on papers only as the products were being delivered directly to the ultimate consignee and the gate passes and invoices were being issued in the name of either of accused Nos. 8 or 10 purportedly showing the sales through accused Nos. 8 and 10. The headquarters audit party noticed the transactions to be shady and suspicious. The Chandigarh Collectorate on September 10, 1985, issued summonses requiring accused No. 1 to produce its ledgers and RT-12 while accused Nos. 8 and 10 were asked to produce their sale invoices for September 24,1985 received from Messrs K. C. Vanaspati (accused No. 1 ). However, these accused did not produce the said documents despite issuing summonses and registered notices on one pretext or the other. Ultimately, these accused-respondents were served to appear on January 7, 1986 alongwith the documents mentioned therein and on the failure of these accused persons to produce the relevant record, a complaint dated November 17, 1986 was filed by the Assistant Collector (Audit), Central Excise Collectorate, Chandigarh, for offence under Section 9 of the Act.
(2.) THE learned Chief Judicial Magistrate vide order dated October 13, 1987, summoned the accused-petitioners for November 26, 1987, but notice was not issued for failure to file process fee, et cetera. Thereafter, on November 26, 1987, notice was ordered to be issued to the accused-respondents for January 7, 1988. The petitioner then got the orders of summoning quashed in Criminal Writ Petition No. 426 vide order dated July 28, 1989, passed by S. D. Bajaj, J. of this Court (as he then was), on the ground of non-application of mind.
(3.) THEREAFTER, the learned Chief Judicial Magistrate passed a detailed order dated March 9,1990 and summoned the accused including the petitioner for April 10, 1990. The accused No. 1 petitioner being aggrieved against that order had sought the quashment of the complaint, Annexure P-l as well as summoning order, Annexure P-2 on the ground of non-application of mind as well as on the ground that the allegation in the complaint does not make out any offence. The jurisdiction of the Court, at Chandigarh, to entertain the complaint was challenged on the ground that the offence was committed at Jammu and not in the territorial jurisdiction of Chandigarh. Objection was also taken regarding the complaint being barred by limitation under Section 40 of the Act. It was also maintained that the Assistant Collector (Audit) was not empowered to institute complaint or issue requisition for producing the record under Section 14 of the Act. On merits of the case, it was averred that the requisite record had already been produced before the audit party and it was returned to the petitioner after due appraisal.;