TaxTMI 
TaxTMI 
2013 (9) TMI 55
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....covered, which according to the officers appeared to be containing datewise details of the clearances of chewing tobacco and hence the same were placed under seizure. Statement of Shri Lalji Tiwari, Authorised Signatory of the appellant firm and his wife, Smt. Chemala Devi was recorded on 14-7-1999 under Section 14 of the Central Excise Act, 1944 wherein on being asked about the seized documents, he stated that the same were containing details about the sale of the branded chewing tobacco to various customers, during November, 1997 to July, 1999 period in respect of most of which, no duty had been paid. This statement of Shri Tiwari was corroborated by the statement dated 6-9-1999 of Mrs. Chamela Devi. It is on this basis that the show cause notice dated 10-11-1999 was issued to the appellant as well as Mrs. Chamela Devi for - (a) confiscation of 49.960 Kgs. of branded chewing tobacco found in excess of the recorded balance under the provisions of Rules 9(2) & 173Q of the Central Excise Rules, 1944, (b) recovery of central excise duty amounting to Rs. 8,50,414/- in respect alleged of clandestine clearances of branded chewing tobacco without payment of duty during the period f....
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.... the register, it cannot be presumed that the same pertained to the clearances of chewing tobacco and no duty demand can be raised, that duty demand of Rs. 3,19,188/- is based on the entries in the loose sheets recovered from the factory premises, that it has been mentioned by Shri Lalji Tiwari in his statement that these loose sheets do not belong to them and the same may have been prepared by the labours doing the work at the factory on commission basis, that since no inquiry had been conducted with the persons, whose name figure in these loose sheets, it cannot be presumed that these loose sheets pertain to the clearances of branded chewing tobacco to the persons mentioned in the loose sheets, that in view of the above, the impugned order upholding the duty demand against the appellant is not sustainable, and that in any case, since the period of dispute is prior to May, 2001 and w.e.f. 11-5-2001, old Section 11AB had been replaced by new Section 11AB without any saving clause, in view of provisions of sub-section (2) of new Section 11AB, no interest on the duty can be demanded. Shri Garg also cited the judgment of the Tribunal in the case of Dalmia Vinyls (P) Ltd. v. CCE, Hyder....
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....f three categories of documents recovered from the factory premises-bill books of the appellant firm issued to their various customers, date wise entries in the register titled "rent receipt register" and date wise entries on the loose sheets. The recovery of these documents from the factory premises of the appellant firm on 1-7-1999 is not disputed. Shri Lalji Tiwari, husband of the Proprietor, Smt. Chamela Devi and also the Authorised Signatory of the appellant firm, who was actually running the day-to-day business of this firm, was specifically questioned with regard to these documents and he in his statement dated 14-7-1999 has explained the entries in these documents and it has been accepted by him that these documents pertain to the sale of the chewing tobacco to their customers, which were without payment of duty. In his statement, he neither disputed the recovery of these documents from his factory nor did he disowned the same. The statement dated 14-7-1999 of Shri Lalji Tiwari was affirmed by the statement dated 6-9-1999 of Smt. Chamela Devi. None of these statements have been retracted by them. In view of this, it is difficult to accept the plea of the appellant that the ....
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....uring the period prior to 11-5-2001. 5. The appellant have cited the judgment of the Tribunal in the case of D.P. Industries (supra), wherein it has been held that merely on the basis of the private records, allegations of clandestine clearances cannot be upheld and it has to be proved beyond reasonable doubt and not on the basis of preponderance of probabilities. However, this view is contrary to the law laid down by the Hon'ble Supreme Court in the case of Commissioner of Police, New Delhi v. Narender Singh reported in (2006) 4 SCC 265, wherein, in para 12, the Hon'ble Supreme Court has held as under :- "12. It is not in dispute that the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding, preponderance of probability would serve the purpose. (See Kamaladevi Agarwal v. State of W.B.) 5.1 Hon'ble Supreme Court, in the case of Collector of Customs, Madras v. D. Bhoormull reported in 1983 (13) E.L.T. 1546 (S.C.), in which goods of foreign origin, alleged to have bee....