KOTHARI, J. - (1.) THIS writ petition is directed against the order of Central Excise & Gold (Control) Appellate Tribunal (CEGAT) dated 4. 5. 1994 upholding the levy of differential duty and penalty for the alleged clandestine removal of certain goods from the manufacturing unit of the petitioner-assessee.
(2.) AT the out-set we may state that normally a reference or an appeal under the provisions of the Central Excise Act, 1944 (hereinafter referred to as the "act") would have lied to High Court under Section 35g/35h of the Act but since this writ petition under Art. 226 and 227 of the Constitution of India was entertained way back in the year 1994 and has since remained pending here for all these 12 years, we are not inclined to dismiss this writ petition on the ground of such alternative remedy available to the petitioner particularly when this writ petition was admitted after hearing both the parties on 16. 5. 2002. Therefore, we heard the writ petition at length on merits. Mr. N. K. Maloo, learned counsel appearing for the petitioner submitted that while upholding the order of the Adjudicating Authority, the Tribunal, dismissing the appeal of the assessee on 4. 5. 94 was not having the benefit of an order dated 28. 6. 1995 passed by the learned Court of Special Judicial Magistrate, Economic Offences (Revenue), Jaipur wherein on a criminal complaint filed by the Superintendent, Central Excise Department, against the partners of the assessee firm M/s. Bhagwati Metals on the same set of facts and evidence as was available before the Adjudicating Authority and the CEGAT held on merits that no case of clandestine removal of goods was made out against the assessee firm and, therefore, the partners of the assessee firm Sh. Suresh Kumar Bajaj and Sh. Ashok Kumar Bajaj were not liable to be prosecuted and thus the court acquitted them of the charges levelled by the Excise Authorities. Mr. N. K. Maloo, learned counsel appearing for the petitioner firm, therefore, strenuously urged before us that in view of this subsequent development where the findings of the Adjudicating Authority have not been upheld and not approved by a Court of law of competent jurisdiction and rather conflicting findings have been given as to there being no clandestine removal of goods, the case deserves to be remanded back to the CEGAT for fresh consideration in view of this development and the said judgment of the competent Court filed along with the application under O. 41 R. 27 CPC may be taken into account and the case be remanded back to the CEGAT. This prayer of the learned counsel for the petitioner was opposed by Mr. Kamlakar Sharma, appearing on behalf of the respondent-revenue. The facts in the nut shell resulting in the demand and duty and penalty under the Act are like this: That on 20. 4. 1988, four coils of bare copper wires weighing 101. 200 kgs. was checked by the authorities of the respondent department on the way side and the driver of the auto rikshaw, Shyam Lal was examined who produced a slip of paper of M/s. Krishna Cable Co. with hand written instructions thereon to bring those coils from one Mr. Kapil Gupta, Manager in the petitioner firm M/s. Bhagwati Metals. On the apprehension of evasion of Excise Duty, the concerned authorities also visited the business place of the petitioner firm M/s. Bhagwati Metals and verified the stocks and examined Mr. Kapil Gupta, Manager. During the said survey, they also found 12 "kacha" slips and on the basis of confessional statement of Kapil Gupta dated 22. 4. 88, Annex. 4, additional duty was demanded on the basis of writings on the said kacha slips as well. In the third instance, the Excise Authorities also found that entries relating to manufacture of copper wire to the extent of 221. 90 kgs was not made in RG-1 Register and thus for these three alleged acts according to adjudicating authorities the additional excise duty was leviable from the assessee along with penalty and redemption fine of Rs. 20,000/- was imposed on the assessee. Penalty under Rule 9 (1), 47, 173-G was also imposed by order dated 8. 12. 1989. The assessee took the matter further before the CEGAT where it lost and thereafter the present writ petition was filed as stated above.
(3.) LEARNED counsel for the petitioner, Mr. Maloo, relying on Sec. 14 of the Act which gives power to summon persons to give evidence and produced documents in inquiries under this Act to the Central Excise Authorities, urged that in the case present case, the Adjudicating Authority never bothered to even allow opportunity of cross-examination of Mr. Kapil Gupta, Manager of the assessee firm on the alleged confessional statement of whom the demand in question was raised by the Adjudicating Authority though such confessional statement stood retracted and withdrawn by the said Manager Mr. Kapil Gupta on the earliest available opportunity on 22. 4. 1988 vide Annex. 4. The Adjudicating Authority according to him also failed to exercise his powers under Sec. 14 of the act to summon witnesses or alleged purchasers to whom the goods in question were alleged to have been sold by the assessee firm on the basis of 12 kacha slips and thus in the absence of any such witnesses, the assessee could not be said to have removed the goods and sold them in a clandestine manner to such purchasers. Therefore, the demand in question was illegal and unsustainable. Per contra, Mr. Kamlakar Sharma appearing for Revenue urged that findings of facts given by the authorities do not call of any interference as they are based on evidence on record and subsequent judgment by the criminal Court cannot be taken into consideration to upset those findings. The short question which arises for our consideration is whether the findings of criminal court resulting in acquittal of the assessee in the prosecution lodged by the departmental authorities on the same set of facts and evidence is a relevant consideration while deciding upon the validity of the orders passed by the Assessing Authorities under the quasi judicial assessment powers conferred upon them under the Act for determination of Excuse Duty. ;