Judgment.- The several respondents in these Criminal Appeals were convicted under section 9(b) of the Central Excise Act by the learned 2nd Additional Judicial First Class Magistrate of Kovvur and sentenced to suffer simple imprisonment for a period of two months each and further to pay a fine of Rs. 200 each. On appeals preferred by them, all of them were acquitted by the learned Additional Sessions Judge of West Godavary on the ground that the prosecutions were barred by Limitation having been instituted more than six months the period prescribed by section 40 (2) of the Central Excise Act. The State has preferred these appeals against the orders of acquittal. 2. Section 3 of the Central Excise Act empowers the levy and collection, in the prescribed manner, of duties of excise on all excisable goods other than salt at the rate mentioned in the First Schedule. Entry No. 4 of the First Schedule specifies the rate of duty on categories of unmanu- factured and manufactured tobacco. Section 37 of the Act empowers the Central Government to make rules to carry into effect the purposes of the Act. Section 38 provides for the publication of all rules made under the Act in the official gazette and states that on such publication such rules shall have effect as if enacted in the Act. The Central Excise Rules of 1944, were duly made and published. Rules 19, 24, 25 and 29 prescribe when and how duty on unmanufactured goods is payable. The scheme of the rules is this: Duty becomes payable on unmanufactured goods when they are cured and are ready for sale or manufacture. The curer may sell the unmanufactured goods to a licensed wholesale dealer after paying duty or without paying duty. The licensed wholesale dealer, in turn, may sell the unmanufactured goods to another licensed wholesale dealer. If duty has already been paid by the curer, there is no question of paying duty again. If duty has not been paid by the curer, the first wholesale dealer may pay the duty and sell goods or he may sell the goods without paying the duty in which case the liability to pay duty will be passed on to the second wholesale dealer. If duty has not been paid by the curer, the first wholesale dealer may pay the duty and sell goods or he may sell the goods without paying the duty in which case the liability to pay duty will be passed on to the second wholesale dealer. This process may be repeated until the last wholesale dealer sells to the manufacturer or exports the unmanufactured goods, when the last wholesale dealer has to pay the duty. To prevent avoidance of duty rule 32 prohibits the transport of unmanufactured tobacco without a valid permit signed by an officer or a certificate in the proper form signed by the curer or the wholesale dealer to whose premises it is to be transported. Duty, paid tobacco is however allowed to be transported from the premises of a wholesale dealer to the premises of another wholesale dealer under cover of a sale-note issued by the consignor. Rule 32(2) makes punishable the making of false entries in a sale-note or a certificate and the transporting of tobacco without a valid permit certificate or sale-note. Section 9(b) of the Central Excise Act prescribes that whoever evades the payment of any duty payable under the Act shall be punishable with imprisonment which may extend to six months or with fine upto Rs. 2,000 or with both. The gravaman of the charge against all the respondents, who are licensed wholesale dealers was that they avoided payment of duty by transporting; non-duty paid tobacco as if it was duty paid tobacco under cover of false sale-notes. 3. Now, section 40(2) of the Central Excise Act, says: “No suit, prosecution or other legal proceeding shall be instituted for anything done or ordered to be done under this Act after the expiration of six months from the accrual of the cause of action or from the date of the Act or order complained of.” 4. The respondents claim that the prosecutions were launched four years after the alleged acts of avoidance of duty and therefore, they were barred by the limitation prescribed by section 40(2). The question for consideration is whether the acts of avoidance of duty could be said to be acts done or ordered to be done under the Act. 5. The respondents claim that the prosecutions were launched four years after the alleged acts of avoidance of duty and therefore, they were barred by the limitation prescribed by section 40(2). The question for consideration is whether the acts of avoidance of duty could be said to be acts done or ordered to be done under the Act. 5. It would be strange to held that something done in direct contravention of the Act or in direct contravention of the rules which have effect as if enacted in the Act is a thing done or ordered to be done under the Act. In State of Punjab v. Mohar Singh1, dealing with section 11 of the East Punjab Refugees (Registration of Land Claims) Act their Lordships of the Supreme Court observed: “We agree with the High Court, the expression ‘anything dons’ occurring in the section does not mean or include an Act done by a person in contravention of the provisions of the ordinance.” In Public Prosecutor v. Vattem Venkatratmayya2, a Division Bench of this Court, while construing section 117 of the Indian Factories Act, thought that the above-mentioned observation of the Supreme Court turned on the words “In exercise of the powers” occurring in the expression “anything done..........in exercise of the powers conferred by or under the said ordinance” used in section 11 of the Act. The learned Judges were of the view that the expression “anything done or intended to be done under the Act” occurring in section 117 of the Factories Act described the pro- venance (or source) of ‘the thing done or intended to be done’. According to them the test would be whether the person could reasonably claim that the act complained of was done or intended to be done by virtue of some obligation imposed by the Act. They also observed that section 117 of the Factories Act would have little content if it did not include anything done in contravention of the Act. They said: “If the condition precedent is that done or intended to be done is not in contravention of the Act, no prosecution under the Act would lie, whether or not there was good faith on the part of the doer.” 6. They said: “If the condition precedent is that done or intended to be done is not in contravention of the Act, no prosecution under the Act would lie, whether or not there was good faith on the part of the doer.” 6. Section 117 of the Factories Act States: “No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.” The decision of the Division Bench of this Court in Public Prosecutor v. Vattem Venkatramayya1, is no longer good law in view of the later pronouncement of their Lordships of the Supreme Court in State of Gujarat v. Kansara Manilal Bhikalal2, Hidayatullah, J., after observing that the language of section 117 was not limited to officers but was wide enough to include “any person” went on to say: “But the critical words are ‘anything done or intended to be done’ under the Act. The protection conferred can only be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to comply with any of its provisions; it cannot confer immunity in respect of actions which are not done under the Act but were done contrary to it. Even assuming that an act includes an omission as stated in the General Clauses Act the omission also must be one which is enjoined by the Act. It is not sufficient to say that the act was honest. That would bring it only within the words ‘good faith.‘It is necessary further to establish that what is complained of is something which the Act requires should be done or should be omitted to be done. There must be a compliance with a provision of the Act, before the protection can be claimed. The section cannot cover a case of a breach or an intended breach of the Act however honest be the conduct otherwise.” It is thus clear that any person doing a thing which is prohibited and rendered punishable by the rules cannot claim that the doing of the thing is under the Act. It would be anomalous to hold that a contravention of the Act is something done under the Act. 7. It would be anomalous to hold that a contravention of the Act is something done under the Act. 7. In considering the question it is also necessary to draw a distinction between the act of avoidance of duty and the technique employed to cover up one’s tracks, as it were. The charge against each of the respondents was that he avoided payment of duty and not that he made a false sale-note or transported tobacco under a false sale-note. True, he made a false sale-note and transported tobacco under a false sale-note. But that was the modus operandus employed by him to escape detection. Making of a false sale-note and transporting tobacco under a false sale-note are acts which are punishable, not under section 9 of the Central Excise Act, but, under rule 32(2) of the Central Excise Rules. None of the respondents was prosecuted for an offence under rule 32(2). If he was so prosecuted section 40(2) might perhaps be pleaded as a bar to such a prosecution on the ground that a wholesale dealer is empowered to issue a sale-note under rule 32 of the Central Excise Rules and that in issuing the sale-note he was doing something under the Act. I do not want to express any opinion on that question. But I am clear that section 40 (2) is not a bar to a prosecution for avoidance of duty under section 9 of the Central Excises Act merely because the modus operandus employed by the accused is the preparation of false sale-note and transport under cover of the false sale-note. Their Lordships of the Supreme Court in several cases had occasion to deal with offences of criminal breach of trust and falsification of accounts where accounts were falsified to facilitate misappropriation. In all such cases it was invariably held that the offence of criminal breach of trust did not require sanction under section 197, Criminal Procedure Code, but the offence of falsification of accounts requited such sanction vide Hon Ram Singh v. Emperor1, Omprakosh v. State of Uttar Pradesh2, Satwant Singh v. State of Punjab3, and Baijnath Gupta v. State of Madhya Pradesh4. The cases where the doing of the official act is itself involved in the offence of criminal breach of trust are of course a distinct category of cases. Vide-Ambik Singh v. State of Pepsu5, and Shree Kantiah Ramayya Munipalli v. State of Bombay6. The cases where the doing of the official act is itself involved in the offence of criminal breach of trust are of course a distinct category of cases. Vide-Ambik Singh v. State of Pepsu5, and Shree Kantiah Ramayya Munipalli v. State of Bombay6. In the present case, we are concerned with the former category of cases. I do not think that the bar of section 40 (2) applies to the offence of avoidance of duty punishable under section 9 (4) of the Act. 8. The learned Additional Sessions Judge relied on a judgment of a learned single Judge of this Court in State of Andhra Pradesh v. Abdul Hameed Khan7. That was a case in which an Inspector of Central Excise and certain tobacco dealers were charged with conspiracy to deprive the Central Government of its legitimate revenue. The Inspector was alleged to have issued bogus permits for transport of tobacco in order to facilitate avoidance of tax by the dealers. The issue of bogus permits is not made penal by the Act or the Rules. Rule 32 renders punishable transport of tobacco without a valid permit, certificate or sale-note; it renders punishable the entering of false particulars in a certificate or sale-note. But it does not render punishable the entering of false particulars in a permit granted by an Inspector of Central Excise. The Irspector who in that case issued a bogus permit did not therefore, directly contravene rule 32 or any other rule. The learned Judge held that the issue of a permit was an act contemplated under the rules and therefore it was something done under the Act. Since the issue of the permit was the only act complained of, the learned Judge held that Inspector was entitled to the protection of section 40(2). In the present case the issue of a false sale-note is itself banned and made punishable by the rules and therefore, a person who issues a false sale-note contravenes the provisions of the Rules and does not act under the Art. Further the issue of the falsesale-note was not the gist of the allegation against the respondents. The gist of the allegation against each of the respondents was the non-payment and the avoidance of tax. The issue of a sale-note was to cover the non-payment of tax and to escape detection. The gist of the allegation against each of the respondents was the non-payment and the avoidance of tax. The issue of a sale-note was to cover the non-payment of tax and to escape detection. These facts distinguish the present case from the case of State of Andhra Pradesh v. Abdul Hameed Khan7. In that case the dealer also was prosecuted but the learned Judge held that the prosecution was barred by rule 207 which prescribed a period of limitation of six months for prosecutions under section 9 of the Act. That part of the rule which prescribed a period of limitation has since been repealed and rule 207 is therefore, not a bar to the present prosecutions. 9. As a result of the foregoing discussion, I hold that the learned Additional Sessions Judge was wrong in acquitting the respondents on the ground that the prosecutions were barred by section 40(2) of the Central Excise Act. The orders of acquittal are therefore, set aside and the cases are remanded to the learned Additional Sessions Judge for disposal on merits in accordance with law. K.N.R. ----- Orders of acquittal set aside; cases remitted.