Commissioner of Central Excise Vs. Madhuri Travels - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - (i) whether in the facts and circumstances of the case and in law the hon'ble cestat is justified in reducing the penalty in the case of the respondent who has not been able to prove that there was reasonable cause for the failure ? (ii) whether in the facts and circumstances of the case and in law the hon'ble cestat is justified in reducing the penalty to the level below the minimum penalty prescribed under the law, which comes to rs.order1. revenue has come in appeal on the following substantial questions of law:(i) whether in the facts and circumstances of the case and in law the hon'ble cestat is justified in reducing the penalty in the case of the respondent who has not been able to prove that there was reasonable cause for the failure ?(ii) whether in the facts and circumstances of the case and in law the hon'ble cestat is justified in reducing the penalty to the level below the minimum penalty prescribed under the law, which comes to rs. 40,364/-?before the tribunal, the only issue canvassed was whether the commissioner (appeals) has a power to reduce the penalty imposed under section 76. question as now framed, therefore, would not arise from the order of the tribunal. even otherwise considering section 80 of the finance act, 1994, it is clear that there is power in the authority on showing reasonable cause, not to impose penalty or reduce the amount of penalty. that issue is fairly covered by the order of this court in commissioner of central excise & customs, nashik v. d.r. gade : 2008 (9) s.t.r. 348 (bom.).2. considering the above, there is no merit in the appeal which is accordingly dismissed.

Judgment:
ORDER

1. Revenue has come in appeal on the following substantial questions of law:

(i) Whether in the facts and circumstances of the case and in law the Hon'ble CESTAT is justified in reducing the penalty in the case of the Respondent who has not been able to prove that there was reasonable cause for the failure ?

(ii) Whether in the facts and circumstances of the case and in law the Hon'ble CESTAT is justified in reducing the penalty to the level below the minimum penalty prescribed under the law, which comes to Rs. 40,364/-?

Before the Tribunal, the only issue canvassed was whether the Commissioner (Appeals) has a power to reduce the penalty imposed under Section 76. Question as now framed, therefore, would not arise from the order of the Tribunal. Even otherwise considering Section 80 of the Finance Act, 1994, it is clear that there is power in the authority on showing reasonable cause, not to impose penalty or reduce the amount of penalty. That issue is fairly covered by the order of this Court in Commissioner of Central Excise & Customs, Nashik v. D.R. Gade : 2008 (9) S.T.R. 348 (Bom.).

2. Considering the above, there is no merit in the appeal which is accordingly dismissed.