M.A.A.KHAN,J. - (1.) THIS petition under Section 482 Cr. P.C. is directed against the order, dated February 1, 1995 whereby the Special Judicial Magistrate (Economic offences) Rajasthan, Jaipur, rejected petitioner's application under Section 245(2) Cr. P.C.
(2.) THE relevant facts are that the petitioner is the Managing Director of . R.S.R.K. Marbles Ltd., Nathdawara (Udaipur), which is engaged in the manufacture of irregular marbles slabs falling under Chapter 25 sub -heading No. 2504.21 of the Central Excise Tariff Act, 1985 and attracting liability to pay excise duty. On October 13, 1988, the officers of the Excise and Customs Department conducted a survey at the business premises of petitioner's Company and found that the said Company had cleared 849.52 Sq. Mts. of marbles slabs, without payment of excise duty amounting to Rs. 8,919.96. It further appears that on examination of the record pertaining to production of slabs and gate passes it was also found that during the period from October 9, 1988 to October 13, 1988 the petitioner's Company had cleared 330.05 Sq. Mts. of marbles slabs, without accounting for in RG 1 Register and without payment of duty amounting to Rs. 3,465/ -. The officers were, therefore, of the opinion that petitioner's Company had contravened the provisions of Rules 9(1), [53(2)], [173Q] and 226 of Central Excise [Rules] amounting to Rs. 12,384/ - and thus committed the offences punishable under Sections 9(l)(b), 9(l)(bb) and 9(l)(bbb) of the Central Excises and Salt Act, 1944 (for short, 'the Act') punishable under Section 9(l)(ii) of the Act. The Superintendent, Central Excise (Prosecution) accordingly filed a complaint against the petitioner in the Court of Special Judicial Magistrate (Economic Offences) Rajasthan, Jaipur. During the pendency of the complaint before the learned Magistrate, the petitioner filed an application under Section 245(2) Cr. P.C. with the contention that in view of the Circulars issued by the Central Board of Excise and Customs (for short, the Board) no prosecution for evasion of excise duty which did not exceed Rs. 10,000/ -, should have been launched by the department against him and since such prosecution had been launched in violation of the standing orders and guidelines of the Board, the prosecution was liable to be dropped and the petitioner entitled to be discharged. After hearing the parties on such application of the petitioner the learned Magistrate held that since he had already taken cognizance of the offences, as against the petitioner and since the order/circular/guideline issued by the Board were not binding on the Court, the prosecution against the petitioner could not be dropped. It is that order which is being challenged by way of this petition.
(3.) MR . P.K. Kasliwal, learned counsel for the petitioner vehemently urged that the order/circular/guidelines issued by the Board were binding on the officers of the Department of the Excise and Customs Department and therefore, the complaint filed in contravention of the binding circulars was not maintainable. In support of his contention Mr. Kasliwal relied upon the Supreme -Court decision in the case of K.P. Vergliees - : [1981]131ITR592(Cal) . The learned counsel produced the relevant circulars before me. The copy of the order, dated 28 July, 1989 passed by the Assistant Collector, Central Excise and Customs Division Jaipur, was also produced. The learned counsel appearing for the Excise and Customs Department could not dispute the authenticity of the documents produced by Mr. Kasliwal for the perusal of the Court.;