Judgment 1. The Assistant Collector, Central Excise, is the appellant herein. He filed a complaint against the respondent, the proprietor of M/s.Gunasekaran Match Works, for the offences under Secs.9(1)(b), 9 (1)(bb), 9(1)(c) and 9(1)(d) of the Central Excise Act, 1944. 2. The trial court convicted the respondent for the offences under Secs.9(1)(c) and 9(1)(d), but acquitted in respect of the offences under Secs.9(1)(b) and 9(1)(bb). As against the conviction in respect of two charges, the respondent has not preferred any appeal. As against the acquittal in respect of remaining two charges, the complainant has presented this appeal. 3. The facts leading to the presentation of the appeal are as follows: (a) One Gandhi, the respondent herein is running a match factory under the name and style of M/s.Gunasekaran Match Works at Chathirapatti under the licence. On 20.8.1985, the Assistant Collector of Central Excise, Virudhunagar Division along with his staff paid a surprise visit to M/s.Gunasekaran Match Works, Chathirapatti. At the time of officers inspection, one K.Raju, the Accountant of the factory was present. The respondent was not present. On demand, the said Raju produced the registers for checking. On perusal of the registers and on physical verification, it was found out that there was a wide variation between the actual stock reflected in coolie registers and R.G. 1 registers where the stock was entered. On further probe, it was found out that between 28.11.1983 and 19.8.1985, the respondent/accused manufactured 40,805 gross of matches and did not bring the same into the account, but the same was removed, in order to evade the payment of customs duty as notified under the Notification 22/82. When Raju, the Accountant was examined, he gave a statement to RW.2, the present Administrative Officer of Central Excise. He stated that he was not aware of the reasons for the variations between the stock and the account in R.G.I register. (b) On 22.8.1985, the accused appeared before P.W.2 and gave a statement Ex.P-10. In his statement, he told RW.2 that he was running four other factories leased out to him by four named persons, besides his own factory, namely, Gunasekaran Match Works and the alleged excess were manufactured on behalf of those factories. He further deposed that he has to clandestinely removed the matches manufactured in M/s.Gunasekaran Match Works and that the manufactured matches as contained in the coolie registers were cleared after proper payment of duty. He further deposed that he has to clandestinely removed the matches manufactured in M/s.Gunasekaran Match Works and that the manufactured matches as contained in the coolie registers were cleared after proper payment of duty. (c) Thereafter, P.W.3 obtained statements Exs.P-11 to P-14 from those four named persons to the effect that they did not lease out their factories to the accused. Since in the preliminary enquiry, it was concluded through worksheet Ex.P-17 that for three years the accused manufactured 59,525 gross of matches and removed the same without showing in the accounts, the show cause notice Ex.P-18 was issued by the Collector of Central Excise on 21.11.1985. There also the accused appeared and explained the position reiterating his statement contained in Ex.P-10. (d) After adjudication on 7.12.1987 the Collector of Central Excise passed an adjudication order Ex.P-19 holding that the respondent/accused was liable to pay the duty of a sum of Rs.2,47,791.42 and imposed a penalty of Rs.5,000. Thereafter, the Assistant Collector filed a complaint on 18.5.1989 for the above referred offences and the same was taken on file on 29.5.1989. 4. During the course of trial, in order to prove the case of the prosecution, P.Ws.l to 3 were examined and Exs.P-1 to P-19 were marked. On the side of the defence, Exs.D-1 to D-21 were marked. 5. On consideration of the materials, as indicated earlier, the trial court convicted the respondent only for the offences under Secs.9(1)(c) and 9(1)(d) of the Central Excise Act and sentenced him to pay a fine of Rs.500 on each count, in default, to undergo two months’ rigorous imprisonment. In respect of the charges for the offences under Secs.9(1)(b) and 9(1)(bb) of the Act, the complainant, the appellant herein has filed this appeal challenging the said acquittal. 6. Mr.P.Rajmanickam, the learned counsel for the appellant, would contend that the variation found in the quantities of production of matches between the entries found in R.G.I Registers Exs.P-2 to P5 on the one hand and private coolie registers Exs.P-6 to P-8 maintained by the accused on the other hand is attributable to clandestine removal of manufactured matches without payment of duty and that therefore the lower court having held that the respondent/accused was liable to be convicted for the offence under Secs.9(1)(c) and 9(1)(d) of the Act, ought to have convicted for the other charges also. 7. 7. In reply to the submissions made by the counsel for the appellant, Mr.Sankaran, appearing for the respondent, would contend that the judgment of acquittal in respect of these charges is perfectly valid in law, inasmuch as there is no sufficient material available on record to prove the said offences. 8. Before launching the discussion on the rival contentions with reference to the merits of the case, let me now refer to the guidelines given by the Apex Court over the powers of the court in dealing with the appeal against acquittal in the decisions in Dhana v. State of M.P. Dhana v. State of M.P., A.I.R. 1996 S.C. 2478 and Ramesh Babulal Doshi v. State of Gujarat Ramesh Babulal Doshi v. State of Gujarat, A.I.R. 1996 S.C. 2035. 9. As laid down by the Apex Court, though the Code does not make any distinction between an appeal against acquittal and an appeal against conviction, so far as the powers of the appellate court are concerned, certain unwritten rules of adjudication have consistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusions whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal, the appellate court has to bear in mind that every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him he would retain that benefit in the appellate court. The appellate court in appeal against acquittal has to proceed more cautiously. Unless there is absolute assurance of the guilt of the accused, upon the evidence on record, the order of acquittal is not to be interfered with or disturbed. 10. The mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with the order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative, the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only reappraise the evidence to arrive at its own conclusion. 11. In keeping with the above principles, I have, therefore, to first ascertain whether the findings of the trial court are sustainable or not. 12. The accusations levelled in the complaint are four fold. Firstly, the accused committed the offence by evading the payment of duty payable under the Central Excise Act. The relevant charge is 9(1)(b). Secondly, the accused removed the excisable goods in contravention of the provisions of the Act. This is 9(1)(bb). Thirdly, the accused failed to supply information which he is required to supply and supplied false information. This is 9(1)(c). Fourthly, the accused attempted to commit the evasion of payment of duty payable under the Act. This is 9(1)(d). 13. This is a case, where on 20.8.1985, the Assistant Collector inspected M/s.Gunasekaran Match Works to which the respondent is the Proprietor and found on physical verification 715 gross of veneer matches and 10 gross of cardboard matches, whereas R.G.I for Veneer matches showed opening balance stock on 16.8.1985 as 500 gross and R.G. 1 for cardboard was written upto 31.7.1985 and showed ‘Nil’ balance stock. On finding this variation, the registers, both R.G.I Registers and Coolie Registers were recovered relating to the years 1983 to 1985. 14. Since the Accountant, who was present in the premises, was not aware of the reasons for the variations, the respondent was summoned and he appeared on 22.8.1985. He gave explanation that he was running on lease four other factories, namely, M/s.Karpagam Match Works, M/s.Saraswathi Match Works (Two), M/s.Kadavul Match Works and other excess matches were manufactured in his own factory on behalf of the other factories due to the labour problem, and that he had never removed earlier the matches cladestinely, but cleared the same only after proper payment of duty. However, the statements were obtained from the proprietors of those factories to the effect that those factories were not leased out to the accused. On the basis of these materials, show cause notice was given to the accused by the Collector of Central Excise and in the adjudication proceedings conducted against him, the penalty was imposed upon him. Thereafter, this complaint was filed. 15. The trial court convicted the accused for the offence under Sec.9(1)(c) for having supplied false information on 20.8.1985 to the officials by hot entering the actual stock manufactured in R.G. 1 register and under Sec.9(1)(d) for having attempted to evade payment of duty mainly on the ground that the proprietors of all the other four factories have given statements Exs.P-11 to P-14 stating that their factories were not leased out to the accused. Regarding the other charges, namely, under Secs.9(1)(b) and 9(1)(bb) for having evaded the payment of duty and removed the excisable goods, the trial court concluded that there is no sufficient evidence available on record, in view of the admission made by P.W.2 to the effect that there was no complaint against the accused for clandestine removal and that the goods could not be removed without affixing the band rolls and without getting the approval. 16. The learned counsel for the appellant would vehemently contend, on the strength of Sec.9(c), that the court shall presume the existence of culpable mental state and it shall be a defence for the accused to prove that he had no such mental state with respect to the act charged as an offence in that prosecution. 17. The reading of the section inclusive of explanation, would make it clear that the “culpable mental state” includes knowledge of a fact. As far as this proposition is concerned, there is no dispute. But, the question is whether there are any specific accusations on the basis of some materials produced before the court to enable the court to invoke Sec.9(c) of the Act. 18. As admitted by the learned counsel for the appellant, there is a variation regarding the excess quantities alleged to have been manufactured by the accused without payment of duty. In the complaint as well as in Exs.P-17 and P-18, the show cause notice and adjudication order, between November, 1983 and August, 1985 the accused manufactured 40,805 gross. 18. As admitted by the learned counsel for the appellant, there is a variation regarding the excess quantities alleged to have been manufactured by the accused without payment of duty. In the complaint as well as in Exs.P-17 and P-18, the show cause notice and adjudication order, between November, 1983 and August, 1985 the accused manufactured 40,805 gross. In the deposition by P.W.2, Superintendent, Central Excise Department, would state that the total excess of matches was 59,525 gross. There is no clear evidence of to show as to how these officials have arrived at this conclusion. Leave alone the variation. It is the specific evidence of P.W.2 that the matches would not be removed and taken but without the affixure of bond-rolls. It is also admitted by him that the R.G.3 register with reference to the affixure of band-rolls on the matches was not recovered. He would further admit that there is no complaint to them that earlier the matches were removed either without bandrolls or by affixing the counterfeit bandrolls. The relevant admission made by P.W.2 is this: “TAMIL” 19. In these circumstances, unless there is material to show that the excess matches were earlier, removed, in my view, Sec.9(c) cannot be invoked to raise presumption against the culpable mental state of the accused. If that removal has been established, then it is for the accused to prove that that removal was made without any culpable mental state to evade the payment of duty. In these circumstances, mere accusation in the complaint without any material regarding the removal and the evasion of payment of duty the court cannot presume on the basis of the variations found in the registers that the accused must have removed and evaded the payment of duty. 20. As regards the case relating to other charges, there is a clear evidence that the stock found in the premises on physical verification did not tally with the R.G.1 register. In those circumstances, the trial court concluded that the other charges were proved, as there are materials to show that the correct informations have not been supplied on the date of inspection, thereby attempt has been made to evade payment in respect of the excess matches found on the date of the inspection. 21. As stated earlier, there is no material to show that earlier any excess matches were removed and payment was evaded. 21. As stated earlier, there is no material to show that earlier any excess matches were removed and payment was evaded. Moreover, even between the complaint and the evidence there is a variation in the calculation made by the prosecution with reference to the quantity of matches, manufactured. 22. It is also seen from Exs.D-1 to D-21 that the band rolls were purchased by the accused on payment of duty and the approval was also obtained, under Ex.D-21 for affixing on match boxes. So, in those circumstances, it cannot be definitely held that the excess matches as found in the private coolie registers were removed clandestinely. At any rate, in view of the admission by P.W.2 as indicated earlier, I am not able to hold that the reasonings given by the trial court for acquitting the respondent in respect of other two charges are palably wrong. 23. For the foregoing discussion, I unhesitatingly hold that the impugned judgment rendered by the trial court for recording the order of acquittal in favour of the respondent is correct, as I do not find any reason to differ from the view taken by the trial court.