TaxTMI 
TaxTMI 
1993 (1) TMI 141
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....the appellants were called upon to pay the differential duty as the duty was chargeable on the value based upon the figures supplied to the District Industries Centre on the charge of clandestine removal of Sodium Silicate. For instance in Appeal No. E/1578/88, the appellants have declared the value of their sale of Sodium Silicate manufactured and sold by them during the financial years 1980-81 to 1985-86 (upto 31/8/85) as under :- "FINANCIAL YEAR VALUE OF SODIUM SILICATE SOLD (Rs.) 1980-81 17,18,567.09 1981-82 16,84,456.00 1982-83 12,21,064.45 1983-84 10,87,872.83 1984-85 14,14,493.88 1985-86 09,72,156.28 (upto 31-8-1985) But they had intimated the sales of Sodium Silicate to the Central Excise Department as under:- "YEAR VALUE OF CLEARANCE AMOUNT OF EXCISE DUTY PAID BED (Rs.) SED (Rs.) 1980-81 10,18,416.99 58,311.63 2,915.81 1981-82 8,08,501.40 6,581.50 329.11 1982-83 7,49,664.39 - - 1983-84 7,36,675.00 - - 1984-85 8,09,155.54 29....
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....s it was held in the case of M. Koyakutty, Kayam - Kalam v. Collector of Customs & Central Excise, Cochin (1978 (2) E.L.T. (J 494)] and even if the appellants have given inflated figures for the purpose of getting more advances that alone should not be held to be conclusive proof with regard to the allegation of clandestine removal as it was observed by the Tribunal in the case of Rakesh Bulb Industries v. Collector of Central Excise, Pune-1989 (22) ECR 171. 5. He said that when the Court has not ordered the proof of a fact by an affidavit it is no evidence nor an affidavit can be used as evidence under the Evidence Act as observed in the case of Mansingh Lamba Sons Others v. Collector of Customs & Central Excise, New Delhi [1987 (32) E.L.T 730] relying upon the decision of the Supreme Court in the case of Viswanathan v. Wajid, AIR 1963 SC 1, wherein it was held the principle while interpreting the order XIX, Rule I of the Code of Civil Procedure. He also drew our attention to the observations made by the Supreme Court in the case of Dr. N.C. Singhal v. Union of India that admissions in affidavits held by the Govt. which are mere expressions of opinion limited to the conte....
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..... The assessing officer reopened the assessments of the assessee for the previous years under section 16 of the Tamil Nadu General Sales Tax Act, 1959, on the ground that the accounts did not reflect properly the production and also levied penalty. The Sales Tax Tribunal on appeal held that there was no suppression. On a revision by the State: Held, (1) that merely because the assessee conducted himself in a manner which was not conducive to ethics, the taxing authority could not invoke the provisions of reassessment and penalise him; (2) that the finding of the Tribunal that the assessee utilised in his business only the actual quantum granted by the Director and that had been duly accounted for in the regular books of account maintained by him, was essentially a finding on a question of fact which could not be interfered merely on suspicion. The morality and intention of an assessee does not enter into the field of adjudication in taxing law. If an assessee can by a process which is acceptable in law avoid or evade taxation, he can do so." 8. While countering the arguments, Shri Bhatia reiterated the findings given in the impugned orders and emphasised that since duly sw....
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....J.A. Naidu, Etc. Etc. v. State of Maharashtra [1983 (13) E.L.T. 1611], the Supreme Court while dealing with the criminal appeal matter relating to contraband articles under the Customs Act/ observed that "it was for the prosecution to prove affirmatively that the contraband articles were in the conscious possession of accused and that the accused had received currency notes as claimed by the prosecution. To presume the accused guilty unless he proved innocence was not the correct approach to the appreciation of evidence. Nor the suspicion, however grave, can take the place of proof. Therefore, conviction based on such criteria was illegal and invalid". (ii) The Tribunal has taken the view in case of M/s. Ebenezer Rubbers Limited v. Collector of Central Excise, Ahmedabad [1986 (26) E.L.T. 997 (Tri.) =1987 (10) ECR 407] that the penalty cannot be imposed on the basis of material which points out to only a possibility of clandestine removal and further held that clandestine removal must be proved and supported by sufficient evidence so as to demand duty by observing that "there is no evidence that the department has made any attempt to check with the octroi authorities whether the ....