2019 Supreme(Mad) 3118

IN THE HIGH COURT OF MADRAS
P.N. Prakash, J.
Williamson Magor and Company Limited – Appellant
Versus
The Assistant Collector of Central Excise Prosecution – Respondent
Crl. A. Nos. 470 of 2019 and 35 of 2011
Decided On : 13-11-2019

Headnote:

Central Excises and Salt Act, 1944 - Section 9(1) - Indian Evidence Act - Section 33 - Central Excise Rules, 1944 - Rule 173F - Companies Act, 1956 – Criminal Procedure Code - Section 244 - Order of conviction – First Information Report - Simple imprisonment - Company incorporated under Companies Act, 1956 and were into manufacture of electrical circuits starters conductors control panels vacuum circuit breakers etc - They had factories in several places in country - For present Court are concerned with their factory at Door Kurnool High Road Chennai where they were manufacturing aforesaid items - While that being so officers of Central Excise Department raided factory and also factory and collected various materials which showed that finished items had gone out of both factories without payment of Excise Duty for period from March to July - Statements of staff members and employees of Kilburn were recorded and documents produced by them were scrutinized by Department officials - After that Department issued a show-cause notice to and Kilburn under Central Excises and Salt Act, 1944 and those proceedings were contested by aggrieved in Revenue fore - In mean time underwent changes and metamorphosed into Williamson and Company Limited – Held, Coming to Ex. P.9 series has stated that produced Ex. P.9 series to him during enquiry - Presumption under Section 36A of CESA about truth of contents of a document can be raised only if document had been produced by person or seized from his custody in a prosecution against him - In this case as alluded to above Ex. P.9 series was produced by who is not an accused in case - Had Department seized documents from office then presumption under Section 36A will apply in a prosecution against and co-accused - Conditions for invoking Section 36A of CESA have thus not been met - Ex-consequent Ex. P.9 series cannot be used as a substantive piece of evidence against A.1 to A.3 in this case – Now coming to allegations against Kilburn and charge states that excisable goods were sent out from factory between March and July without payment of excise duty - To prove this charge prosecution has placed reliance on statement Senior Intelligence Officer - A reading of Ex. P11 shows that it is not a confession statement - When was asked about removal of goods - Thereafter when he was confronted with some documents he has stated that it is an inter-group Production Transfer Note - Thus it is an exculpatory statement and not an inculcator statement to qualify as a confession - Though all these documents including the statements of witnesses can be used in the adjudication proceedings as substantive evidence, the same cannot be put to use in a criminal trial unless they pass relevancy and admissibility tests laid down by Evidence Act, read with special rules of evidence under CESA - Adjudication order under CESA and payment of penalty therein cannot ipso facto prove commission of offence by accused in a criminal prosecution - In the words of late lamented Professor celebrated author of book Indian Evidence Act - A critical commentary absence of evidence of guilt is not evidence of absence of guilt – Thus accused are acquitted only on ground of absence of evidence and it is made clear that their acquittal will not in any way have bearing on adjudication proceedings under CESA – Appeal allowed