2019 (1) TMI 909 - AT - Central Excise

Tribunal upholds department's case on clandestine goods removal, dismisses appeal on search and seizure validity.

M/s. K.K. PLASTICS Versus C.C.,C.E. & S. T-COCHIN-CCE

The tribunal upheld the department's case, finding that the appellants had engaged in clandestine removal of goods. The evidence, including the pen drive, ... Clandestine manufacture and removal - plastic molded chairs - burden of proof to establish that there was clandestine manufacture - seizure of the pen drive - correctness of the Mahazar - dependability of Mahazar witnesses - maintainability of evidence. Held that:- The Department could prove to a reasonable extent that the appellants have indulged themselves in clandestine removal. The same issues have been elaborately discussed in the OIO giving reference to various evidences like documents recovered and statements recorded - The appellant’s contention with regards to the manner of search and seizure may be relevant in a criminal proceeding but not certainly in quasi-judicial proceedings. The Revenue for understandable reasons cannot prove everything with an arithmetical precision. What is required is to prove the allegation with reasonable amount of evidence which could logically be extended to the entire activity. The seizure of estimates from the residence of Shri K.K. Ibrahim and from the dealers like M/s. Greenfair go to prove that the arguments of the appellant on the pen drive are not substantiated. Among the date contained in the seized pen drive, there were estimates, sales register (month-wise), purchased register of chemicals, purchased register of RP and cash book etc. Evidences were available about the purchase of chemicals from M/s. Plastic Industries, Mumbai and M/s. Pinks Enterprises, Allwaye etc. It has been established that the appellants have been purchasing RP (recycled plastic) from their sister concerns, Karothukuzhy Plastics and Karothukuzy Plastic Industries and others like A to Z Traders and Marketing etc. The same was confirmed by Smt. Aswathy, Office Assistant of the appellants - it is incorrect to say that the Department has not established clandestine manufacture. It cannot be expected that all evidence will be contained in the records seized as the records are likely to be destroyed in all probability particularly in the case of clandestine manufacture and removal. Seizure of “Periyar” brand of plastic chairs and stools from M/s. Green Fair Marketing on 16.01.2006 is one of the clear evidences for clandestine manufacture and clearance. Therefore, in view of the facts of the case, it is found that Department has established clandestine manufacture to a reasonable extent. Further, sale and recovery of additional consideration has been clearly established from the evidence gathered from the print outs taken from the pen drive, statements of company officials and statements of drivers, dealers etc. Therefore, the appellant’s contention is not acceptable. Appeal dismissed - decided against appellant. Issues Involved:1. Alleged clandestine removal of goods.2. Validity of search and seizure.3. Reliability of evidence and witness testimonies.4. Proof of clandestine manufacture and removal.5. Admissibility of evidence obtained during the search.6. Retraction of confessional statements.7. Maintenance of proper records and documents.Detailed Analysis:1. Alleged Clandestine Removal of Goods:The case revolves around the alleged clandestine removal of plastic molded chairs by the appellants. The officers of DGCEI conducted an investigation and issued Show Cause Notices (SCNs) alleging such removal. The Commissioner of Central Excise upheld the SCNs, confirmed the duty demanded, confiscated the seized goods, and imposed penalties.2. Validity of Search and Seizure:The appellants argued that the search and seizure were tainted and illegal, rendering the evidence inadmissible. They contended that the witness who testified about the recovery of the pen drive, Mr. Pradeep Kumar, provided contradictory statements, and the search was allegedly conducted under the instigation of a rival company. The appellants also pointed out discrepancies in the witness's statements and the presence of Mr. Santhakumar, an excise officer.3. Reliability of Evidence and Witness Testimonies:The appellants challenged the reliability of the evidence, particularly the pen drive, and the testimonies of witnesses. They argued that the pen drive's seizure was not witnessed, and there were inconsistencies in the statements of Mr. Pradeep Kumar and other witnesses. The appellants also highlighted the failure of the department to produce another Mahazar witness, Mr. Rajib Dan, for cross-examination.4. Proof of Clandestine Manufacture and Removal:The appellants contended that the department failed to establish clandestine manufacture, which is essential for levying duty. They argued that there was no cogent, solid, or direct evidence of clandestine removal without payment of duty. The appellants maintained that the entire case was based on the pen drive's evidence, which they claimed was suspect.5. Admissibility of Evidence Obtained During the Search:The department argued that evidence obtained under illegal search could still be admitted if there was no express statutory or constitutional violation. The Commissioner AR cited various judgments to support this contention. The department also argued that minor discrepancies in witness statements should not discredit the recovery and seizure of the pen drive.6. Retraction of Confessional Statements:The appellants retracted their confessional statements, claiming they were obtained under duress. However, the department argued that the burden was on the appellants to prove that the statements were obtained by threat, coercion, or inducement. The department cited several judgments to support the admissibility of retracted confessional statements if they were found to be voluntary.7. Maintenance of Proper Records and Documents:The department argued that the appellants failed to maintain proper records as required under the Central Excise Rules. They highlighted discrepancies in the appellants' records and the suppression of production and value of goods cleared. The department presented evidence from production slips, purchase registers, and statements of dealers and employees to support their case.Conclusion:The tribunal upheld the department's case, finding that the appellants had indulged in clandestine removal. The evidence, including the pen drive, statements of company officials, and corroborative documents, was found to be sufficient to establish the charges. The tribunal rejected the appellants' contentions regarding the validity of the search and seizure, reliability of witness testimonies, and the retraction of confessional statements. The appeal was dismissed, and the impugned order was upheld.