Judgment L.P.N.Shahdeo, J. 1. This revision is directed against the judgment of conviction and order of sentence dated 16.6.1985 passed, by 2nd Additional Judicial Commissioner, Ranchi in Criminal Appeal No. 27 of 1981 confirming the conviction and sentence of the petitioner passed by the trial court whereby the petitioner was convicted under Sec. 9 of the Central Excises and Salt Act, 1944 (hereinafter to be referred as the Act) and sentenced to undergo rigorous imprisonment for one year in the following circumstances. 2. It appears that the Assistant Collector, Central Excise, Ranchi along with the excise staffs, on 2.1.1973, went to check the godown of the petitioner and found the same closed and none was present there. Thereupon, the Assistant Collector, Central Excise, who is the complainant in this case, sealed the godown of the petitioner. Again on 5.1.1973, in presence of the brother of the petitioner, verification of that godown was made and it was detected that 139 bales containing T.A.C. chewing tobacco covering Rs. 64,206 had been completely removed in illegal manner without payment of duty and without obtaining transport permit. It was also found that 19 bales of tobacco were short in weight by 1066.5 Kgs. which were also removed illegally. It was also detected that 65 bales of I.A.C. chewing tobacco were illegally received in the warehouse without any transport permit and were not accounted in the warehouse register of the petitioner. Lastly, another bale of I.A.C. chewing tobacco containing 85 Kgs. w as found to have been not accounted for in the warehouse register of the petitioner. 3. The complainant, after obtaining necessary sanction from the Collector, Central Excise, Ranchi, filed a complant against the petitioner before the Sub-divisional Judicial Magistrate, Ranchi. The case was ultimately tried by Sri Diwakar Singh, Judicial Magistrate, Ranchi. 4. The complainant, in order to prove the case, had examined altogether five witnesses. The learned Magistrate, on consideration of the evidence, facts and circumstances of the case, held the petitioner guilty, convicted and sentenced him to undergo R.I. for one year under Sec. 9 of the Act. 5. Feeling aggrieved by the aforesaid judgment of conviction passed by the trial court, the petitioner had preferred an appeal which was also dismissed and the judgment of conviction and order of sentence passed by the trial court were confirmed. 5. Feeling aggrieved by the aforesaid judgment of conviction passed by the trial court, the petitioner had preferred an appeal which was also dismissed and the judgment of conviction and order of sentence passed by the trial court were confirmed. The petitioner, feeling aggrieved by the said judgment of conviction and order of sentence maintained in appeal, has preferred this revision before this court. 6. Mr. Narayan Roy, learned counsel appearing on behalf of the petitioner, has submitted that the admitted facts in the complaint petition, do not make out any offence either under Sec. 9(b) of under the rules framed under the Act and, as such, the conviction of the petitioner under Sec. 9 or 9(b) of the Act is erroneous in law and facts. It was also submitted that Sec. 9(b) deals with evasion of payment of any duty payable under the Act and in this case there was no evasion of payment of any duty in fact, subsequently, all the excise duty levied against the petitioner with fine was deposited and, as such this case should not have been filed against the petitioner. 7. The fate of this revision depends upon the decision as to whether the allegations levelled against the petitioner taking together, make out a case of evasion of payment of excise duty for which only the petitioner has been convicted by the trial court and affirmed by the lower appellate court. 8. Sec. 9(b), as it stood before an amendment, was that whoever evades payment of any duty payable under this Act "shall for every such offence be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both." 9. The first infirmity which is apparent on the face of the order and detected, is that the Magistrate had awarded sentence which is not prescribed under the Act. The Act provides substantive punishment, as stated above, which may extend to only six months. Therefore, the imposition of sentence of one year R.I. is without jurisdiction and against the statutory provision provided for such punishment. 10. It is admitted position in this case that all the goods or the tobacco brought in the warehouse or the godown of the petitioner were already assessed to excise duty. Therefore, the imposition of sentence of one year R.I. is without jurisdiction and against the statutory provision provided for such punishment. 10. It is admitted position in this case that all the goods or the tobacco brought in the warehouse or the godown of the petitioner were already assessed to excise duty. It is not a case in which the removal of I.A.C. tobacco or any part of it or any deficiency in the weight or removal from the godown was likely to confer any benefit or any monetary advantage to the petitioner as all those goods found in the godown were already assessed to excise duty by the complainant which fact is admitted by him in his evidence. 11. It appears that, subsequently, the excise duty which was assessed on the petitioner amounting to Rs. 64,404 as per demand towards tax by the department, had been paid by the petitioner. This position is undisputed in this case. 12. The words evades the payment of excise duty payable under this Act does not embrace within its ambit for such nature of goods which were already assessed to excise duty. The word evades or evasion generally means some method or device or strategem, some arrangement or trust or other device resorted to with a view to escape payment of duty. It suggests underhand dealing. Therefore, it is difficult to conclude that mere non-payment of duty which has been assessed, can amount to evasion as contemplated in Sec. 9(b) specially in view of the fact that Sec. 11 by itself and Rule 144, provides procedure for recoveries of the sums to the Government under the Act or the Rules. 13. In this case all those excisable goods stored in that godown of the petitioner were already assessed to excise duty which, admittedly, the petitioner had subsequently paid. Therefore, it can be safely and reasonably concluded that the allegations made against the petitioner do not constitute an evasion or method or device to make any wrongful gain for himself and make a corresponding wrongful loss to the department concerned as all those goods were a already assessed by the complainant and payment of tax were determined which, ultimately, the petitioner in this case has paid. 14. 14. From the aforesaid reasonings unerring conclusion which will follow is that petitioner was nor responsible not had he caused any evassion of payment of excise duty and, therefore, his punishment or conviction and sentence imposed against him for that account only under Sec. 9(b), must be held to be erroneous and void. On this ground alone, in my opinion, this revision must succeed and the judgment of conviction and order of sentence passed by the two courts, cannot sustain in law and are fit to be quashed. 15. In this case the opposite party who was the complainant, could not be examined as he was dead by that time. The evidence of other witnesses, namely, P.Ws. 1, 3, 4 and 5, taken together, indicates that they had accompanied P.W, 2 for conducting verification of the stock in the said ware-house at the relevent time and aforesaid irregularities and shortage of the bales of tobacco stored in that godown, were found in the manner, indicated above. Therefore, from their evidence it appears that removal of the bales of tobacco for not obtaining transport permit, is not punishable under Sec. 9(b) of the Act for the reasons stated above. 16. The whole stock is verified, the moment it is received in the were-house and are assessed to tax which, in this case, has already been paid to the tune of Rs. 64,000 and odd and in support of that the petitioner has filed the demand notes (Ext. A) and payment made (Exts. B to J) Both the courts have also taken note of it but, they found that the case was of evasion of payment of tax which, according to me, was not at all a case of that nature on the admitted facts stated in the complaint petition. 17. From the allegations made in the complaint petition, taken on its face value supported by the witnesses, it has been prima facie shown that no offence appears to have been made out against the petitioner under Sec. 9(b) of the Act and therefore, the criminal prosecution of the petitioner is without jurisdiction, void ab initio. 18. In the result, this revision application is allowed. The judgment of conviction and order of sentence passed against the petitioner by the two courts below, are hereby set aside and the whole criminal proposal prosecution of the petitioner is quashed.