STATE Vs. BISWANATH AGARWALLA

JUDGEMENT

(1.) THIS appeal is directed against the appellate order of the learned Sessions Judge, Mayurbhanj Baripada, in Criminal Appeal No. 66 M of 1978 acquitting the respondents of the charge under Section 9(1)(b) of the Central Excises and Salt Act, 1944 (hereinafter referred to as the 'Act').

(2.) THE two respondents who are the Manager and Proprietor respectively of the firm called M/s. Mayurbhanj Match Manufacturing Company, Rairangpur, faced trial before the Chief Judicial Magistrate, Mayurbhanj, for having committed offences under Section 9(1) (b) and (bb) of the Act on the allegation that they evaded the payment of duty under the Act and contravened the provisions of statutory rules, made under the Act. The respondents are engaged in manufacturing match in their factory at Rairangpur and match is an excisable commodity, for removal of which, duty is payable under the Act. The Superintendent of Central Excise (P.W.5) having received some information that the accused respondents are evading payment of excise duty, made a surprise check along with his staff (P.W.s 1 and 2) of the factory premises on 4.8.1973. At that point of time, accused Ghasiram was absent, but accused Biswanath was present. On being, asked to produce the books of accounts, said Biswanath produced all the books which were available. P.W.5 took those books along with him for examination after granting proper receipt (Ext.1). On scrutiny, it was found that there exists lot of variations between the quantity of matches manufactured and removed as accounted for in the statutory register called R.G. 1 and the corresponding entries in the private account books of the accused persons. On the next day, i.e. on 5.8.1973, P.W.5 along with his staff again went to the factory and seized the books of accounts under seizure list (Ext.2) and returned those books which were not relevant for his purpose. On being asked to explain the difference, accused Biswanath gave a statement (Ext.3) asking for some time to explain the details. The seized books of accounts were then brought to the headquarters and after necessary examination, it was found that the accused persons have evaded payment of excise duty to the tune of Rs. 86,602/ between 1971 72 and 26th July, 1973. A show cause notice to the accused respondents was given and thereafter a complaint was filed in the Court of the Sub Divisional Judicial Magistrate, Rairangpur, by the Assistant Collector of Central Excise. It was alleged in the complaint petition that the manufacturer violated the provisions of Rule 9(1), 52, 52 A and 53 of the Central Excise Rules, 1944 (hereinafter referred to as the 'Rules') punishable under Section 9(1)(b) of the Act.

(3.) DURING the arguments it was contended by the learned counsel appearing for the defence that the provision of Section 9(1)(bb) of the Act having been inserted in the statute by Amending Act 36 of 1973 which received the Presidential assent on 1.9.1973 and the alleged offence being in relation, to a period prior to the same, the accused cannot be made liable for the said offence. The Public Prosecutor conceded to the said position and, therefore, the only charge against the accused persons was under Section 9(1)(b) of the Act.