A company director cannot be held personally liable for excise act violations in the absence of a specific act or omission on their part or evidence that they were in charge of and responsible for the company's business at the time of the alleged offenses.

1. - By this petition, under Section 482 Criminal Procedure Code the petitioner has prayed to quash the criminal proceedings pending against him in the court of Chief Judicial Magistrate (Economic Offences) Jaipur in Criminal case No. 14/85.

2. In brief, the facts of the case are that on 27.11.1982, the Central Excise, Anti Evasion Staff conducted Physical stock verification of the finished exciseable good stored in non-duty paid store room in the factory premises of M/s Modern Syntex (India) Limited. As a result of stock taking, 131 cases weighing 6019.600 kgs. were found in excess of the balance in statutory RGI register and one case weighing 50 Kg. of cellulosic spun yarn falling order TI No. 18 III (ii) was not found in stock against the recorded balance of RG-I register. The 131 cases of yarn found in excess were seized on the belief that, the same were liable for confiscation for contraventions of provision of Rule 53 read with Rules 226 of the Central Excise Rules, 1944. The test result of two samples of yarn drawn from the 131 seized cases revealed that good packed inside were not the same as declared by party on the top of the seized case, in as much as, that while the said goods were declared to be 2/40s PV 48/52 blended yarn, the goods were actually found to be of single ply having P/V blend of 13.1/86.9 and 12.9/87.1.

3. A notice to show cause was served upon by the Collector, Central Excise, Jaipur on Feb. 28, 1983 calling upon the Company as to why a penalty be not imposed on it for the alleged violation of the provisions of the Central Excise and Salt Act, 1944 (hereinafter to be referred as 'the Act') and the Rules framed there-under.

Thereafter, a departmental proceeding was initiated by the Collector, Central Excise, Jaipur. In the departmental proceeding, the Collector held that the seized 131 cases were of excess goods produced but not accounted for in the statutory RGI register and the plea of the Company that the goods were duty paid and were received back from the parties was not sustainable. Consequently, the Collector held that there was contravention of Rule 9(i), 52-A, 53 read with Rule 226 of the Central Excise Rules, 1944, as such, he ordered the Company to pay a sum of Rs. 1,26,293.25 as Central Excise Duty on the goods found unaccounted for and a sum of Rs. 562.50 as Central Excise Duty in respect of 50 Kgs of cellulosic spun yarn removed from the factory without payment of duty. The goods were ordered to be confiscated redeemable on payment of a fine of Rs. 10,000/- Rs. 15,000/- were also Imposed as penalty on the Company for violation and contravention of the Central Excise Rules mentioned above vide adjudication order dated July 6, 1984.

4. A prosecution was also launched for the aforesaid violation against the accused persons, including the petitioner and a complaint was filed by the Asstt. Collector, Central Excise Division, Jaipur after obtaining necessary sanction. The learned Magistrate took cognizance vide impugned order dated March 1, 1985 against all the accused persons, Including the petitioner. Hence, the petitioner has approached before this Court being aggrieved against the said order of cognizance.

5. Mr. Paras Kuhad and Mr. Mahendra Singh, appearing for the petitioner, made two fold submissions. Firstly, that the Appellate Tribunal in its judgment held that there was no evasion of the amount of duty, as such, the criminal proceedings against the petitioner should be quashed on that finding. Secondly, the petitioner was the Chairman of the Board of Directors and there is no allegation or evidence that he was incharge or responsible for the affairs of the Company.

On the other hand, Mr. Sudhir Gupta, learned Counsel for the Department contended that the prosecution of the petitioner cannot be said an abuse of the process of the court and on the basis of any finding in the departmental proceedings, the criminal proceedings cannot be quashed.

6. I have considered the rival contenti