JUDGMENT 1. - By this petition, a challenge is made to the order dated 28-6-2008, whereby revision petition preferred by the non-petitioner was accepted. 2. Learned counsel for petitioner submits that a complaint was filed for the offence under Central Excise Act, 1944. Learned Magistrate took cognizance of offence followed by pre-charge evidence. At the aforesaid stage, an application was filed by the non-petitioners under Section 245 Cr.P.C. for their discharge. The application aforesaid was dismissed vide order dated 5-5-2008. The non-petitioners challenged the order by maintaining a revision petition and has been allowed. The non-petitioners were discharged mainly on the ground that separate proceedings for imposition of penalty were decided in favour of the non-petitioners. The discharge was in ignorance of the fact that proceedings were not terminated after determination of the issues on merit but on a technical ground of limitation. 3. The Revisional Court was persuaded further by dismissal of reference by the High Court. It was again without realising that dismissal was not on merit but on account of default of the department to appear before the Court. The issue on merit was not touched either by the Tribunal or by the High Court so as to have consequence on the prosecution. Without realising the aforesaid, impugned order was passed discharging the non-petitioners. The Court below failed to make distinction between two separate proceedings and its effect. In one proceedings, recovery of excise duty along with penalty can be made, whereas in the other, order of punishment is passed. The two proceedings operated in distinct areas and with different consequences. To support the argument, a reference of judgment of Supreme Court in the case of Standard Chartered Bank & Ors. etc. v. Directorate of Enforcement & Ors. etc., reported in AIR 2005 SC 2622 has been given. A prayer is accordingly made to quash the impugned order. 4. Per contra, learned counsel for non-petitioners submitted that allegation against the non-petitioners was for taking benefit of Modvat in an illegal manner. A notice was issued by the Commissioner of Excise. The Tribunal found notice to be beyond the period of limitation, thus it was set aside. A reference before the High Court also resulted with same fate as it was dismissed in default. A notice was issued by the Commissioner of Excise. The Tribunal found notice to be beyond the period of limitation, thus it was set aside. A reference before the High Court also resulted with same fate as it was dismissed in default. In view of the above, demand of excise duty by alleging wrongful benefit of Modvat was decided against the department and in favour of the assessee. Once the excise duty was not imposed, the prosecution for taking wrongful benefit of Modvat was not permissible. The Revisional Court, thus discharged the non-petitioner-company. Learned counsel has given reference of Sections 9 & 11 of Central Excise Act, 1944 (in short “Act of 1944”) to show as to when the excise duty can be imposed and it can have consequence of offences and penalties. A reference of judgment of the Apex Court in the case of K.C. Builders & Anr. v. Assistant Commissioner of Income Tax, reported in (2004) 2 SCC 731 is given apart from judgment in the case of Swathy Chemicals Ltd. v. Union of India, reported in 2002 (139) E.L.T. 498 (Mad.) . In those cases, the issue was similar to the present case. In the case of K.C. Builders (supra), the allegation against the assessee was for concealment of income. The issue was decided in favour of assessee, thus prosecution lodged against him was quashed by Apex Court. The facts of the present case are similar to that of K.C. Builders (supra), thus judgment aforesaid covers the issue. In the case of Swathy Chemicals Ltd. (supra), the issue was in reference to Central Excise Act itself. Therein, prosecution on same fact and evidence, on which the case was decided favourable to the assessee, was not permitted. In view of judgment aforesaid, there is no error in the order passed by the Revisional Court, thus while maintaining the aforesaid, the petition under Section 482 Cr.P.C. be dismissed. 5. I have considered the rival submissions made by the parties and perused the record. 6. It is a case where two distinct proceedings were initiated by the department. One by invoking Section 11 and other by Section 9 of the Act of 1944. The reference of both the provisions has been given, thus quoted hereunder : “Section 9. Offences and penalties. 6. It is a case where two distinct proceedings were initiated by the department. One by invoking Section 11 and other by Section 9 of the Act of 1944. The reference of both the provisions has been given, thus quoted hereunder : “Section 9. Offences and penalties. - (1) Whoever commits any of the following offences, namely:- (a) contravenes any of the provisions of Section 8 or of a rule made under clause (iii) or clause (xxvii) of sub-section (2) of Section 37; (b) evades the payment of any duty payable under this Act; (bb) removes any excisable goods in contravention of any of the provisions of this Act or any rules made thereunder or in any way concerns himself with such removal; (bbb) acquires possession of, or in any way concerns himself in transporting, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or any rule made thereunder; (bbbb) contravenes any of the provisions of this Act or the rules made thereunder in relation to credit of any duty allowed to be utilised towards payment of excise duty on final products; (c) fails to supply any information which he is required by rules made under this Act to supply, or (unless with a reasonable belief, the burden of proving which shall be upon him, that the information supplied by him is true) supplies false information; (d) attempts to commit, or abets the commission of, any of the offences mentioned in clauses (a) and (b) of this section; shall be punishable, - (i) in the case of an offence relating to any excisable goods, the duty leviable thereon under this Act exceeds fifty lakh of rupees, with imprisonment for a term which may extend to seven years and with fine : Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court such imprisonment shall not be for a term of less than six months; (ii) in any other case, with imprisonment for a term which may extend to three years or with fine or with both. (2) If any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine : Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court such imprisonment shall not be for a term of less than six months. (3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than six months, namely:- (i) the fact that the accused has been convicted for the first time for an offence under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods in relation to such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party in the commission of the offence; (iv) the age of the accused.” “Section 11. Recovery of sums due to Government. Recovery of sums due to Government. - (1) In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder including the amount required to be paid to the credit of the Central Government under Section 11D, the officer empowered by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) to levy such duty or require the payment of such sums may deduct or require any other Central Excise Officer or a proper officer referred to in Section 142 of the Customs Act, 1962 (52 of 1962) to deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or control, or may recover the amount by attachment and sale of excisable goods belonging to such person, and if the amount payable is not so recovered, he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector, on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as if it were an arrear of land revenue : Provided that where the person (hereinafter referred to as predecessor) from whom the duty or any other sums of any kind, as specified in this section, is recoverable or due, transfers or otherwise disposes of his business or trade in whole or in part, or effects any change in the ownership thereof, in consequence of which he is succeeded in such business or trade by any other person, all excisable goods, materials, preparations, plants, machineries, vessels, utensils, implements and articles in the custody or possession of the person so succeeding may also be attached and sold by such officer empowered by the Central Board of Excise and Customs, after obtaining written approval from the Commissioner of Central Excise, for the purposes of recovering such duty or other sums recoverable or due from such predecessor at the time of such transfer or otherwise disposal or change. (2)(i) The Central Excise Officer may, by a notice in writing, require any other person from whom money is due to such person, or may become due to such person, or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government either forthwith upon the money becoming due or being held, or at or within the time specified in the notice, not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount; (ii) every person to whom a notice is issued under this sub-­section shall be bound to comply with such notice, and in particular, where any such notice is issued to a post office, banking company or an insurer, it shall not be necessary to produce any pass book, deposit receipt, policy or any other document for the purpose of any entry, endorsement or the like being made before payment is made, notwithstanding any rule, practise or requirement to the contrary; (iii) in a case where the person to whom a notice under this sub-section has been issued, fails to make the payment in pursuance thereof to the Central Government, he shall be deemed to be a person from whom duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or the rules made thereunder have become due, in respect of the amount specified in the notice and all the consequences under this Act shall follow.” 7. Perusal of Section 11 of the Act of 1944 shows as to when and for what purpose, it can be invoked. It is for recovery of excise duty which is not paid for various reasons or could not be recovered. Section 11 of the Act of 1944, however imposes limitation for initiation of the proceedings. In the first category of cases, limitation to issue notice is only of 6 months, whereas in the second category, it is for 5 years. So far as Section 9 of the Act of 1944 is concerned, it operates for the offences and consequential penalties. No limitation for initiation of prosecution has been given therein. In the first category of cases, limitation to issue notice is only of 6 months, whereas in the second category, it is for 5 years. So far as Section 9 of the Act of 1944 is concerned, it operates for the offences and consequential penalties. No limitation for initiation of prosecution has been given therein. The facts aforesaid are relevant as proceedings in pursuance to Section 11 of the Act of 1944 were terminated as the notice was found beyond the period of limitation for recovery of excise duty. The Tribunal found case to be falling in first category having limitation of 6 months and not in second category having limitation of 5 years. The order was passed in favour of the assessee after recording finding on the issue of limitation, thus it becomes clear that determination of the issues by the Tribunal was not on merit but on limitation. It may be that arguments were made even on merit but no finding has been recorded, if the order of the Tribunal is perused. 8. The other proceedings are through a reference to the High Court. There again reference has not been answered either way but proceedings were terminated on account of default of the party to appear, therefore, determination of the issues was not on merit. The aforesaid facts are relevant and have its effect on the proceedings under Section 9 of the Act of 1944. It is in reference to judgment cited by the learned counsel for non-petitioner in the case of K.C. Builders (supra). It was a case in reference to Income-tax Act but the ratio propounded therein may apply to this case also. It could have been applied but having distinguishable fact, it cannot be. In the case of K.C. Builders (supra), two separate proceedings were initiated. One was for recovery of income tax and other for punishment. In the first proceedings, determination was made on merit. In view of the above, Hon'ble Apex Court found no reason to allow the criminal proceedings to continue and accordingly appropriate order was passed. The case in hand is not having similarity. In the instant case, determination of issue by the Tribunal is not on merit but on a technical ground of limitation. In view of the above, Hon'ble Apex Court found no reason to allow the criminal proceedings to continue and accordingly appropriate order was passed. The case in hand is not having similarity. In the instant case, determination of issue by the Tribunal is not on merit but on a technical ground of limitation. The same is the position regarding reference whether determination of the issue was not made but reference was dismissed on account of default in appearance of the parties concerned. 9. In absence of determination of issues on merit, the non-petitioner cannot take shelter of judgment of Apex Court in the case of K.C. Builders (supra). In the instant case, Section 9 of the Act of 1944 does not provide any limitation to initiate the proceedings though there may be limitation for taking cognizance of offence under Cr.P.C. The issue aforesaid is not raised before me. When the Tribunal so as High Court has not touched the merit, there was no reason for the Revisional Court to discharge the non-petitioners by setting aside the order of learned Magistrate. The non-petitioners were definitely entitled to take the benefit of delay in issuance of notice for recovery of excise duty if it was beyond the period of limitation. So far as prosecution under Section 9 of the Act is concerned, it has not provided limitation. The Revisional Court failed to make distinction between two proceedings and the effect of the order passed by the Tribunal and the High Court where merit of the case was not touched. The dismissal was only on a technical ground.In view of the orders of the Tribunal and the High Court, no recovery can be effected on account of delay in issuance of notice but it does not mean that if the non-petitioners have taken wrongful benefit of Modvat, they would not be liable to be prosecuted. It is when no limitation is provided for it under Section 9 of the Act. In view of the aforesaid, I am unable to accept the view taken by the Revisional Court. Accordingly, the order impugned is set aside by maintaining the order passed by learned Magistrate. 10. With the aforesaid, petition under Section 482 Cr.P.C. is allowed.Petition allowed. *******