The petitioners have filed this revision application for quashing of the criminal prosecution pending in the Court of Add1. Chief Judicial Magistrate (Economic Offences Court) Indore in Criminal Case No. 27/86 under S. 8 of the Central Excise and Salt Act 1944 (hereinafter referred to as the Act).

The facts giving rise to the present application are that on 4.2.83, the officers of the Central Excise Department seized nine cases of stainless steel wires weighing 1-40 kgs. valued at Rs. 3,500/-. The seizure was effected on the ground that the straightening and cutting of the stainless steel wire into such cut wire called finer wire amounts to manufacture within the definition of S. 2 (1) of the Act and consequently, the petitioner-company was bound to pay duty on the said filler wire under Tarrif item no. 68 of the Old Tarrif of the said Act. A show cause notice was issued to the petitioner stating that during the period from August 1978 to June 1983, the Company had not paid a sum of Rs. 68,683.82 P. by way of Central Excise Duty on the value of the said wire so manufactured during this period. The petitioners appeared before the Additional Collector and submitted that no excise duty is leviable on such an item. However, this contention of the petitioners was rejected by the Add1 Collector by its order dt.21.12.84 and he held that process of conversion of S.S. wire into filler wire amounts to manufacture. In his opinion, by this process a new product known into the market by the distinct name and style comes into existence. Accordingly, he directed that an amount of Rs. 68,683.82 be recovered from the petitioner company and he further imposed a penalty of Rs. 5,000/- on the petitioners.

Besides departmenl proceedings, the respondent also initiated prosecution against the petitioners by filing a complaint stating therein that the petitioners had evaded payment of duty and has consequently liable to be prosecuted for offence under the Act. Aggrieved by the order of the Add1. Collector dt. 21.12.84, the petitioners preferred appeal before the Central Excise Tribunal. The Tribunal by its order dt. 28.3.90 set aside the aforesaid order of the Additional Collector and held as follows :-

"We have gone through the records of the case. We have also considered the arguments of the learned Advocate and have gone through the judgment/decisions relied on by him. Following the ratio laid down by the aforesaid judgments/decisions, we hold that the processes of straightening the stainless steel wire and cutting the same into required sizes do not amount to manufacture within the meaning of S. 2 (f) of the Central Excise & Salt Act, 1944 as no new product emerges as a result of the processes. The stainless steel wires remain stainless steel wire after processes sing. The change in their form does not bring about a new product although the appellants gave a local name 'Filler Wire' to the straightened and cut stainless steel wire. Since there was no manufacture under S. 2 (f) ibid, no Central Excise Duty was chargeable on the filler wire under Tarrif Item 68."

No body has appeared on behalf of the petitioners. The petitioners were being· prosecuted for evading payment of duty which they were liable to pay in view of the order dt. 21.12.84 passed by the Addl. Collector Central Excise. As stated earlier, the order of the Addl. Collector dt. 21.12.84 has been set aside by the Central Excise Tribunal and it is not disputed by Shri E.G. Nema learned counsel appearing on behalf of the respondents that the said order has reached its finality. In this view of the matter, it cannot be held that the petitioners had evaded payment of duty. The very foundation of the complaint has thus become non-est by virtue of the order of the Central Excise Tribunal, the petitioners cannot be prosecuted and punished for offence under S. 9 of the Central Excise and Salt

Act, 1944.

For the reasons stated above, this application is allowed.