JUDGMENT Hon’ble Barkat Ali Zaidi, J.—A mother and son have challenged by the abovenoted two applications under Section 482 Criminal Procedure Code, the maintainability of complaint filed by Deputy Commissioner of Customs and Central Excise, Noida against them in the Court of Special Judicial Magistrate, Meerut. They are being heard together and Sri Gopal Swaroop Chaturvedi Senior Advocate, assisted by Sri Vinay Saran, advocate, Sri A.K. Nigam, Addl. Solicitor General of India, assisted by Sri S.S. Tiwari and S.K. Mishra, advocates for Central Excise and Sri Pravendra Kumar, learned Addl. Government Advocate for the State have been heard. 2. M/s. Shahnaz Ayurvedic is manufacturing Ayurvedic Medicines under a drug licence for their two Units situated at Okhla New Delhi and Noida. In the year 1986, M/s. Shahnaz Ayurvedic had declared before the Central Excise Department that it was manufacturing Ayurvedic Medicines and no excise duty was leviable thereon, but the Excise Department had issued a show cause notice dated 2.3.1988 under Section 11-A of the Central Excise Act, 1944 (hereinafter referred to as the ‘Act’) and contended that they were manufacturing cosmetic and not Ayurvedic Medicines. The Addl. Commissioner, Central Excise upheld the contention of the applicants and the matter was closed vide order dated 29.8.1989. Again the controversy arose and a show cause notice dated 14.7.1988 under Section 11-A of the Act was again sent by the Central Excise Department to the applicants but the Assistant Commissioner, dropped the same by order dated 29.1.1992. In the year 1994-95, again the matter arose when M/s. Shahnaz Ayurvedic filed classification list and price list alongwith his questionaire in the department under the provisions of Rule 173-(B) & (C) of the Central Excise Rules, 1944 (hereinafter be referred to as the ‘Rules’), which was finally approved by the Assistant Commissioner, Central Excise, New Delhi vide order dated 26.8.1994 for its Delhi Unit and by Assistant Commissioner, Noida vide order dated 20.12.1994 for its Noida Unit. 3. Again the Central Excise Department issued a show cause notice dated 28.7.1997, 1.4.1997 and 1.7.1997 raising the same controversy and the Commissioner Central Excise (Adjudication) vide order dated 7.8.1998, held that M/s. Shahnaz was producing cosmetic and not Ayurvedic Medicines and by invoking the provisions as contained in Section 11-A (i) of the Act, imposed Excise Duty amounting to Rs. Again the Central Excise Department issued a show cause notice dated 28.7.1997, 1.4.1997 and 1.7.1997 raising the same controversy and the Commissioner Central Excise (Adjudication) vide order dated 7.8.1998, held that M/s. Shahnaz was producing cosmetic and not Ayurvedic Medicines and by invoking the provisions as contained in Section 11-A (i) of the Act, imposed Excise Duty amounting to Rs. 92,39,773/- besides the interest recoverable under Section 11-A & B of the Act and also penalty amounting to Rs. 3,68,04,850/- on the aforenoted amount. The Adjudicating authority besides the above, also imposed the penalty of Rs. 50 lacs on M/s. Shahnaz Ayurvedic and Rs. 25 lacs on M/s. Shaherb Cosmetic under Rule 209 A of the Rules. 4. The order was challenged before the Central Excise Gold Appellate Tribunal (CEGAT in short) but despite the fact that appeals were pending, the Central Excise Department filed a criminal complaint against the applicants about their two units for having evaded payment of Excise Duty under Section 9 of the Central Excise Act and also under Section 420 I.P.C in Criminal Court at Delhi and another at Meerut. 5. Since the applicants could partly succeed before the CEGAT, they filed Civil Misc. Writ Petition No. 820 (T) of 2003, in the Allahabad High Court and the Division Bench upheld the contention of the applicants and found that it could not be proved that the material produced by them was cosmetic. They further held that there was no suppression of fact or fraud or under valuation of sale on behalf of the assessee and the provisions of Section 11-A of the Act could not be attracted. It was further held that the period involved had been from March, 1992 to October, 1996 and the show cause notice dated July, 1997 was clearly barred by limitation. The High Court set aside all orders of CEGAT, and the Central Excise Commissioner adverse to the assessee applicants. 6. The Excise Department appealed to the Supreme Court against the order of the Allahabad High Court, which was dismissed vide order dated 8.10.2004, a copy whereof is annexed as Annexure-C for ready reference. 7. The Magistrate at Delhi discharged the accused vide order dated 3.1.2005, which is attached herewith as Annexure-A for convenience and ready reference and which may be treated as part of this judgment. 7. The Magistrate at Delhi discharged the accused vide order dated 3.1.2005, which is attached herewith as Annexure-A for convenience and ready reference and which may be treated as part of this judgment. Criminal Case at Meerut is still pending and the applicants have prayed for termination of those proceedings because of the findings given by the High Court at Allahabad in writ petition, referred to above, judgment whereof is attached with it as Annexure-B for ready reference. 8. Respondent Excise Department still does not concede that the criminal proceedings before the Magistrate at Meerut, are no more maintainable because of the findings given by the Hon’ble High Court, and they, want to continue whipping a dead horse. It is manifest that after the High Court has held that there was no suppression or fraud and there was no concealment of facts and evasion of Tax the very foundation, on which the criminal complaint rested crumbled and collapsed and the criminal complaint against them under Section 420, I.P.C. and Section 9 of the Act, falls to the ground. 9. An ingenious argument advanced by the Addl. Solicitor General for the Central Excise was that the High Court has held that for the subsequent period, the Excise Authorities will be at liberty to make assessment according to law, and therefore, the criminal proceedings at Meerut will survive. This is a very strange argument which is without any foundation whatsoever. The subsequent assessment has nothing to do with the current criminal proceedings because these criminal proceedings are based on previous assessment and relate to the period for which assessment was previously made and which has been set aside by the High Court. How could a criminal complaint proceed on the basis of an assumption that in future also, there shall be an evasion of duty because, this is what, will be the consequence of the argument advanced. The position here is exactly the same as it existed before the Magistrate at Delhi and the Magistrate did rightly held that the criminal complaint was not maintainable. 10. It was argued by the Counsel for Central Excise that the rejection of Special Leave petition by the Supreme Court vide Annexure-C does not end the matter finally because there is a proposal to file a review petition in the Supreme Court, and that is why, the criminal complaint should be allowed to remain pending. 10. It was argued by the Counsel for Central Excise that the rejection of Special Leave petition by the Supreme Court vide Annexure-C does not end the matter finally because there is a proposal to file a review petition in the Supreme Court, and that is why, the criminal complaint should be allowed to remain pending. If this argument was to be accepted, no judgment would ever become final. When a judgment has been given, the possibility of a review petition, being filed, cannot detract from the finality of the judgment. 11. It may be mentioned on the side lines that it was argued by the Counsel for the applicants that the Central Excise Department granted permission to Deputy Commissioner of Central Excise to file a Criminal Complaint under Section 9 of the Central Excise Act while the complaint filed is not only under Section 9 of the Central Excise Act but also under Section 420, I.P.C. This point does not arise for consideration now when it has been held that the complaint is un-maintainable. 12. One of the argument from the side of the Addl. Solicitor General was that no orders should be passed in proceedings under Section 482, Cr. P.C. and the applicants should be asked to present an application for discharge under Section 245(2), Cr. P.C. If it is found, as here, that the proceedings are ab initio illegal and unfounded, there is no need or occasion to ask the applicant to observe the formality of going back and presenting an application for discharge. If the Court comes to the conclusion that the proceedings initiated against the applicants are illegal, wholly unwarranted and are without any legal justification, the Court must apply a closure straightway without further ado, for stoppage of the abuse of the process of Court. 13. The learned Addl. Solicitor General for the respondent Central Excise has referred to the following cases. (i) Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others, 1976 S.C.C. (Cri.) 507. (ii) State of Bihar v. Rajendra Agrawalla, (1996) 8 S.C.C. 164 . (iii) State of Karnataka v. Moin Patel and others, (1996) 8 S.C.C., 167. (iv) Kamala Devi Agarwal v. State of West Bengal and others, 2001 (43) A.C.C. 1106. (v) Madan v. State of Uttranchal, 2001 (43) A.C.C. 1113. (vi) Hindustan Petroleum Corporation Ltd. and others v. Sarvesh Berry, 2005 (104) F.L.R. 305. (iii) State of Karnataka v. Moin Patel and others, (1996) 8 S.C.C., 167. (iv) Kamala Devi Agarwal v. State of West Bengal and others, 2001 (43) A.C.C. 1106. (v) Madan v. State of Uttranchal, 2001 (43) A.C.C. 1113. (vi) Hindustan Petroleum Corporation Ltd. and others v. Sarvesh Berry, 2005 (104) F.L.R. 305. (vii) Ram Shankar Bhattacharjee v. Gauhati High Court, 2005 (104) FLR 309. (viii) K.C. Builders and another v. ASS II Commissioner of Income Tax, 2004 SCC (Cri) 1002. The decision in these cases depends upon the particular circumstances of each case and cannot be made applicable to all case of this nature. Reference may be made in this connection to the case of Punjab National Bank v. R.L. Vaid and Others, 2004 Cri. L.J. 4246, decided on 20.8.2004, in which the following observation was made : “There is always peril in treating the words of a judgment as though they are words in a Legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstances flexibility, one additional or different fact may make a difference between conclusions in two cases. Disposal of cases by merely placing reliance on a decision is not proper. Precedent should be followed only so as it marks the path of justice, but you must cut out the dead wood and trim of the side branches or else you will find yourself lost in thickets and branches, said Lord Denning, while speaking in the matter of applying precedents." 14. In the result, aforesaid two petitions are allowed and the impugned proceedings (Criminal Complaint Case No. 2404 of 1999) under Section 9 of Central Excise and Salt Act and Section 420 I.P.C. before the Special Chief Judicial Magistrate, Meerut shall stand terminated. Opp. Party No. 2 the Central Excise Department shall be liable to pay the litigation cost incurred in the aforesaid two petitions to the applicants, which is quantified as Rupees thirty thousand. ———