Hon'ble BHAGWATI, J.—This order governs the disposal of bail application filed under Section 439 of Cr.P.C. by Mr. Alok Sharma Advocate on behalf of accused petitioner Rajesh Goyal against the order dated 21.1.2011 passed by Additional Sessions Judge, No. 8, Jaipur Metropolitan in a case under Section 9 of the Central Excise Act, 1944.

2. Brief facts, as emerging from the material available on record, are as under:

That the Anti Evasion Wing of the Central Excise Department, Jaipur-I carried out search on 18th January, 2011 at the factory premises situated at 269, Govind Nagar (East), Old Ramgarh Mod, Jaipur District run by M/s. Goyal Tobacco Company Pvt. Ltd. The Anti Evasion Wing also inspected the residence of the accused petitioner as also his godown. The petitioner is the Director of M/s. Goyal Tabacco Company Pvt. Ltd. During search, the Anti Evasion Wing of Central Excise Department, found three pouch packing machines and one Tobacco Mixture machine installed in the premises. Apart from these machines, quantity of finished goods i.e. branded un-manufactured Tobacco without Lime tube (Laxmi Brand) having RSP of Rs. 2:00, raw Tobacco and packing material were also found in the premises. These machines were found not to have been declared by the firm. The machines were not in a sealed condition which evinced that all the three machines were operational and were being used for packing Tobacco pouches. Even one of the machines was found plug in and ready to use. On being enquired, the accused petitioner admitted that these three machines installed at 269, Govind Nagar, belonged to M/s. Goyal Tobacco Pvt. Ltd. He further admitted that the premises was not registered and machines were also not got sealed from the Department. The petitioner deliberately eschewed the compliance of law so as to evade the payment of excise duty. It was found that finished stocks were likely to be cleared without the payment of excise duty by the accused petitioner. The Anti Evasion Wing Officer seized three pouch making machine, raw material and finished pouches from the factory. Thereafter, on the basis of the statement of Rakesh Kumar and Dinesh Jogi, the labourer, the competent officer calculated the liability of excise duty to the tune of Rs. 338.25 lac under the provisions of chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity, Determination and Collection of Duty) Rules, 2010 (here-in-after) referred to as `Rules of 2010'). Thus, the accused petitioner was found to have evaded the excise duty of Rs. 338.25 lac.

3. Heard the submissions advanced by the learned counsel for the petitioner as also the learned Special Public Prosecutor for Union of India and perused the material available on record.

4. Learned counsel for the petitioner canvassed that the offence under Section 9 of the Central Excise Act was non-cognizable and bailable. He further canvassed that the tax liability had been created on the presumption that three pouch packing machines were installed in the godown and they were being used for manufacturing Tobacco pouches. In fact, it is a presumptive liability based on no evidence, whereas the fact is that out of three machines, two machines were not in operation as they were not having even the motors. In the absence of motors, it can safely be presumed that these two pouch packing machines were not being used and they were not in operation and thus, the presumptive liability also could not be calculated by the concerned authorities. In alternate, learned counsel also submitted that he was prepared to deposit 755 of the amount of presumptive liability under protest. The petitioner is innocent and no manufacuring activity was being carried out at the time of search. He has been falsely implicated in this case and thus, he deserves to be granted indulgence of bail.

5. Learned counsel appearing for the Union of India, non-petitioner has vehemently opposed the bail petitioner and contended that right from the day `Rules o

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