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3.Heard Mr.A.L.Somayaji, learned Senior counsel for the petitioner and Mr.V.Sundareswaran, learned Senior Standing Counsel for the respondent.

4.Mr.A.L.Somayaji, learned Senior counsel appearing for the petitioner submitted that the impugned complaint itself is not maintainable since the order-in-original dated 06.05.2009 has been stayed by the CESTAT. According to the learned Senior counsel, the petitioner herein was not the Managing Director of M/s.Visaka Industries Limited during the years 2003-04 and 2004-05 and was not in-charge of the affairs of the Company and its day-to-day operations of the company during that time. By relying on the provisions of Sections 9(1) and 9(AA) of the said Act, he submitted that the criminal prosecution could only be launched as against the individual who was in-charge of and responsible for the conduct of the business of the Company at the time when the offence was alleged to have been committed. Since the petitioner came to be appointed as Managing Director with effect from 24.06.2009, she was not in-charge of the day-to-day operations of the company and as such, the offence under Sections 9 and 9(AA) of the Act are not made out as against this petitioner. The learned Senior counsel also relied upon the guidelines dated 23.10.2015 for launching of prosecution under the said Act issued by the Central Board of Excise and Customs, Department of Revenue, Ministry of Finance, Government of India and submitted that as per the guidelines, prosecution should not be launched indiscriminately on all the directors of the company but should be restricted to persons who were in-charge of the day-to-day operations of the company and since the petitioner was not the managing director during the relevant period, implicating the petitioner for the offence in the impugned complaint is opposed to the guidelines. Reiterating on the same point, he drew the attention of this Court to the various averments made in the complaint, wherein the petitioner herein was categorically implicated in her capacity as the managing director in the light of Section 9AA of the Act read with the guidelines of the Central Board of Excise and Customs and submitted that the complaint as against the petitioner herein is liable to be quashed.

Person liable to be prosecuted:

3.1 Whoever commits any of the offences specified under sub-section (1) of Section 9 of the Central Excise Act, 1944 or sub-section (1) of Section 89 of the Finance Act, 1994, can be prosecuted. Section 9AA (1) of Central Excise Act, 1944 provides that where an offence under this Act has been committed by a company, every person who, at the time offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Section 9AA(2) of Central Excise Act, 1944 provides that where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation to Section 9AA provides that (a) Company means anybody corporate and includes a firm or other association of individuals and (b) director in relation to a firm means a partner of the firm. These provisions under Section 9AA of Central Excise Act, 1944 have been made applicable to Service Tax also vide Section 83 of the Finance Act, 1994.