TaxTMI 
TaxTMI 
2010 (4) TMI 1030
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....djusted while paying the above amount. 3. I confirm a sum of Rs. 72,15,522/- (Rupees seventy two lakhs fifteen thousand five hundred and twenty two only) towards the duty demanded from M/s. Uniwoods, Shanthipallam, Kumbla, Kasaragode, under the same Act and Rules mentioned above. 4. I confirm a sum of Rs. 73,59,665/- (Rupees seventy three lakhs fifty nine thousand six hundred and sixty five only) towards the duty demanded from M/s. Wood Crafts, Shanthipallam, Kasaragode, under the same Act and Rules mentioned above. 5. I confirm a sum of Rs. 26,73,758/- (Rupees twenty six lakhs seventy three thousand seven hundred and fifty eight only) towards the duty demanded from M/s. Universal Wood Crafts Co., Shanthipallam, Kumbla, Kasaragode, under the same Act and Rules mentioned above. 6. I confirm a sum of Rs. 23,24,056/- (Rupees twenty three lakhs twenty four thousand and fifty six only) towards the duty demanded from M/s. Mailatty Wood Industries, Chowki, Mailatty, Kasaragode, under the same Act and Rules mentioned above. 7. I confirm a sum of Rs. 61,14,236/- (Rupees sixty one lakhs fourteen thousand two hundred thirty six only) towards the duty demanded fro....
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...., I give an option to redeem the same on payment of a fine of Rs. 30,000/- (Rupees thirty thousand only) each under Sec. 34 of Central Excise Act, 1944. 12. I impose a penalty of Rs. 50,000/- (Rupees fifty thousand only) each, under Rules 173Q and 209A of the Central Excise Rules, 1944 read with Sec. 38A of Central Excise Act, 1944 on S/Shri K. Mohammad Arabi, (Partner of M/s. National Boards and M/s. Darvesh Plywoods and proprietor of M/s. Mailatty Wood Industries), Sri M.A. Aboobacker, Partner, M/s. National Boards, Kumbla, Sri P. Abdul Khader, Partner, M/s. Darvesh Plywoods, Kumbla, Smt. M. Assyamma, Proprietor, M/s. Universal Wood Craft Co., Kumbla, Sri N.A. Mohammad, Proprietor, M/s. Wood Crafts, Kumbla, Sri N.A. Mohammad, Proprietor, M/s. Uniwoods, Kumbla, Shri Abdul Muneer, Proprietor, M/s. National Wood Products, Kunjathur and Sri Abdulla Moidu Haji, Proprietor, Bharath Chemicals, Kumbla. 13. I confiscate the 1016 Nos. of Plywood sheets valued at Rs. 2,86,389.20 (Rupees two lakhs eighty six thousand three hundred eighty nine and paise twenty only) seized from Sri Khaleel Rahiman, Glass Center, Kayamkulam at his premises at Door No. XXX/506, Kallamoode, Kayamkula....
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....9/- and Rs. 15,056/- and proposing penal action under Central Excise Rules, 1944 (CER); and also proposing confiscation of Indian currency for Rs. 20,66,940/-, Demand drafts and clieques seized at the office premises of Sri K. Mohammad Arabi, under Section 121 of Customs Act, 1962, as made applicable to Central Excise Act, 1944 (the Act) and proposing penal action under CER against him. (2) Show cause notice No. 20/98, dated 2-8-1999 issued to A1 to A8, Sri K. Mohammad Arabi, Partner of A3 and A4 and Proprietor of A7, Sri M.A. Aboobacker, Partner, A4, Sri P. Abdul Khadar, Partner, A3, Smt. Asiyamma, Prop. A8, Sri E.A. Ahammad, Prop. A1, Sri N.A. Mohammad, Prop, A2, Sri Abdul Muneer Prop., A6 and Sri Abdulla Moidu Haji, Prop. A5, demanding duty amounting Rs. 7,59,24,737/- being the amount short paid by the above units during the period from 1994-1995 to 1999-2000 (upto June 1999) with interest following proposed clubbing of clearances of all the above plywood/block board manufacturing units together for the purpose of determining their entitlement to SSI exemption, alleging undervaluation of the goods manufactured and clandestine clearances proposing demand of duty not paid, c....
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....nce was placed on the statement given by Mr. Ashok Kumar who was only an employee of M/s. Universal Wood Craft Co., to justify the same as forming the basis for sustaining the said charge of undervaluation for all the manufacturing units involved. (v) Similar methodology has been adopted for placing reliance on the statements given by a few of the dealers which also did not stand the test of cross examination who have been made available for cross examination and further being third parties, they were not obliged to retract their statements. (vi) While ordering release of the cash of Rs. 20,66,940/- seized from the office of Mr. Mohammad Arabi, it has been accepted in Paragraph 60 of the impugned Order as under :- In the instant case I find that the department has not adduced any document, incriminating or otherwise showing the details of plywood viz., quantity, size, rate, date of sale, name of the purchaser/dealer, amount received from each person/dealer for each sale, total amount showing the aggregate amount received as Rs. 20,66,940/- etc., to prove that the currency under seizure are the same sales proceeds received from the dealers towards suppressed price of un....
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....dervaluation. The investigating authority never questioned Shri Mohammed Arabi, on whose instructions the said price list had been issued. The charge of undervaluation could not be limited to a period from 15-7-1996 to 2-9-1997 as there was no such charge relating to the preceding period or the following period. The statements relied on in the adjudication were not given voluntarily; these were dictated by the officers. Therefore, the Commissioner could not have relied on the price list to decide the realization of sale proceeds of the impugned clearances. The alleged price list had been recovered from the office of Shri Mohammed Arabi and not from the factory premises of any of the assessees. The same had been allegedly recovered from the premises of one of the dealers; this could not be a basis for determining the price realized by any of the manufacturing concerns. The impugned order proceeded on the assumption on the basis of a single letter on plain paper without details of the assessee. This was obvious as the Commissioner ordered release of entire cash, DDs, Cheques etc. seized along with interest. It was wrongly assumed that the price list reflected the actual value realize....
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....of Rs. 43,714/-. This was 491% higher compared to the invoice price. The quotation slip pertained to M/s. Plywood Plaza, Mysore but no statement had been recorded from the said dealer. Preparation of the quotation slip did not establish receipt of cash. Dealers S/Shri Thomas Rajan and Krishna Kumar who were cross examined denied making payment against quotation slip. The investigating agency could not produce any evidence to establish that quotation slip represented the actual price realized. The Commissioner had relied on the statements retracted in cross examination ignoring affidavits furnished by suppliers of veneers and reply dated 1-12-2000 and 12-4-2002 by Shri Mohammed Arabi to find suppression of purchase of raw material. As regards cash payments and their accounting by dealers/customers of the assessees, no evidence was gathered/produced. The charge of undervaluation has been found without adequate evidence as held by various judicial authorities. The authority had ignored the affidavits filed by Shri Loknath, Shri Anwar Sadath, and the partner of National Boards Shri Abboobacker. Moreover, the investigation covered only the following clearances out of the total : Appell....
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....stine removal upheld, the same basis adopted during the said period for upholding the charge of undervaluation has been taken into account only covering the period 15-7-1996 to 23-9-1997, though the charge of clandestine removal covered a larger period from 1994-1995 onwards. For the other periods, the amounts as indicated in the private records have been blindly adopted. In any case, no separate break up of figures pertaining to undervaluation and clandestine removal has been given in the impugned Order-in-Original and both have been combined for demanding the total differential duty with interest, penalty etc., thereof. 11. The following grounds are raised against the finding of clandestine removal by all the assessees : ■ Not even a single statement has been recorded from any person who is alleged to have received the goods clandestinely removed and the same has been made only based on the private records relied upon for each of the above said six independent units thereto. ■ Further, no confessional statement has been recorded from any of the respective proprietors or partners to substantiate the charge of clandestine removal. ■ Moreove....
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....ircumstances of the matter involved herein and in the light of the principles laid down in several case laws applicable in this regard. * Further, the submissions made by each of the above said six independent concerns regarding demand itself being more than five years in several cases have been totally ignored and brushed aside while passing the impugned Order-in-Original. * Above all, even for determining the duty on the alleged clandestine removals, during the said period of alleged undervaluation i.e., 15-7-1996 to 23-9-1997, the value indicated in the records relied upon has not only been ignored but the same has been artificially inflated, which cannot be sustained at all since no evidence has been furnished to substantiate the same particularly during the said period. To put it differently, the value as per the private records has been adopted for the period before 15-7-1996 or after 23-9-1997 and such a methodology adopted for demanding duty would be totally baseless, arbitrary and cannot be sustained at all. In fact, no separate break-up of duty for clandestine removal has been quantified in th....
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....he realm of suspicion; suspicion could not substitute evidence. The impugned order proceeded on the presumption that accounted sales of plywood were all by cheques; this was a wrong presumption. The findings in the order relying on third party evidence were demolished in cross examination. The investigation covered only a very small percentage of the total clearances involved. The order followed incomplete investigation. 13. As regards clandestine clearances, the learned counsel admitted that private records were not disowned. The question was whether clandestine removal could be found on the basis of private records. Not even one dealer's statement was recorded who was claimed to have received the goods. As regards raw materials, there was no evidence for purchase relatable to goods clandestinely manufactured. Burden to prove clandestine clearances was on the department. There was no evidence of removal of goods. In this connection, the learned counsel relied on the ratio of the judgment in the case of Gurupreet Industries v. CCE [1996 (82) E.L.T. 347]. There was no tangible evidence but only loose slips/day book. Mostly statements were recorded from employees and there were....
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....is indicated evasion of duty due by systematically undervaluing the price of the goods in the invoices while maintaining quotation slips with figures intelligible only to the appellants. As regards clandestine clearances learned special counsel submitted that private records were seized from the appellants such as the day book under mahazar. At no point of time, the fact of raising invoices against day book entries were disowned. He invited our attention to paragraph 33.2 of the order-in-original which dealt with clandestine clearances by Darvesh Plywood. In the said paragraph, the Commissioner had found that Shri Ravindranath had written the invoices as per the statement of Shri Arabi, Managing Partner, Darvesh Plywood. Shri Ravindranath himself had identified such invoices recovered by the authorities from the dealers of the assessee. These were invoices bearing Sl. No. 1 to 242 contained in the day book recovered from Darvesh Plywoods. These accounted for a total Rs. 1,11,03,028/- in the year 1994-95. The assessee started paying duty only from 29-9-1995 as it crossed Rs. 30 lakhs clearance on that date. Duty was payable from 1st of April, 1995. Moreover, the assessee did not giv....
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....ri Khaleel Rahiman stated that the said pricelist was sent by post by M/s. National Boards, Kumbla and showed the actual price of plywood products charged and not those quoted in the invoices. (These were far less than the list price). They used to make payments as per the rates shown in the pricelist. Shri Narayan Bhat, an employee of Shri Mohammed Arabi stated that the said letter had been signed by him and sent by him. This was intended to inform all the dealers of plywood about the increase in prices effective from 15-7-1996. Three pricelists were seized on 23-9-1997 from the handbag of Shri Ashok Kumar, clerk of M/s. Universal Wood Crafts, who attended to preparation of sales invoices at M/s. Uniwoods and M/s. Wood Crafts. These pricelists contained prices for different varieties of plywood/blockboards applicable for dealers of the appellants' products in various states. These prices were much higher than the invoice prices. Shri Ashok Kumar stated that the prices figuring in the pricelists represented the actual prices charged from the customers and handed over to Shri Mohammed Arabi. The invoice price was not the actual price. Two more letters dated 25-12-1996 and dated 15-9....
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....esponding invoice showed Rs. 46,438/-. This position was explained by Shri Raveendranath, Supervisor, National Boards in his statement dated 20-11-1997. 17. Daily statements of account recovered from the residence of Shri Mohammed Arabi showed collection of various amounts in cash from different persons as follows :- On 17-9-1997 Moideen Mogral - Rs. 50,000/- Proprietor - Rs. 2,03,150/- Anvar Sadath - Rs. 4,31,600/- T.T. Plywoods - Rs. 63,000/- On 18-9-1997 Moideen Bhai - Rs. 50,000/- On 19-9-1997 Modieen - Rs. 50,000/- Ibrahim Khalid - Rs. 1,81,500/- Chittanikkara Stores thro' Driver - Rs. 2,00,000/- On 20-9-1997 Rajasekharan - Rs. 8,42,500/- Sadasivan - Rs. 5,15,500/- Asian Cores 3 loads - Rs. 1,58,050/- Monarch - Rs. 38,000/- Lokanath - Rs. 4,12,000/- Hasmukh Shah - Rs. 1,00,000/- Shri Narayan Bhat explained that S/Shri Moideen Mogral, Anwar Sadath, Ibrahim Khalid, Rajasekharan, Sadasivan, Lokanathan and Hasmukh Shah were representatives arranged by Shri Arabi to collect the price of the plywood/block board i.e. invo....
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....counted (para 25.3 and 25.4). As regards resin, the proprietor of M/s. Bharath Chemicals admitted that consignments were supplied to the appellant units without raising invoices. The adjudicating authority relied on documentary evidence for production of resin maintained by the assessee. Based on documents, he found that wages paid to workers by the appellants were grossly suppressed in their financial records. 19. We find that the statements of the employees recorded over a period of time were retracted at the time of cross-examination after a couple of years of recording them. These retractions cannot be accepted. These witnesses were employees of the assessee and not third parties. Their statements under Section 14 of the Central Excise Act have evidentiary value. Seizure of quotation slip from M. Arabi's home was denied as manipulated by the officers by Shri Ashok Kumar in cross-examination. But Shri Arabi did not challenge the seizure of the documents from his house. He also did not challenge seizure of letter dated 15-7-1996 (price-list) from his office on 24-9-1997. A copy of the same document was seized from Khaleel Rahiman at Kayamkulam in simultaneous search on 23-9....
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....vidence of clandestine removal in respect of M/s. Mailatty Wood Industries also examined by me and I find from the document under seizure (Annexure C-43) from the office of M/s. National Boards and M/s. Darvesh Plywoods on 23-9-1997 that the total value of clearance by M/s. Mailatty Wood Industries during 1995-96 was Rs. 54,55,667.55/- whereas in their sales tax return for the same period was shown as Rs. 29,14,219/- only. Similarly it is also seen from their Profit and Loss Account for the year 1996-97, under seizure (Annexure C-46) that their sales turnover is Rs. 1,10,27,544/- at the same time in their Sales Tax account their turnover is shown as Rs. 27,99,067/- only. Moreover, on verification of another document under seizure (Annexure C-48.1 & C-48.2) it is seen that M/s. Mailatty Wood Industries has prepared invoice No. 50 twice in two different handwritings though all the details in the invoices are same. Similarly the invoice No. 60 is also seen prepared twice, the carbon copy of Invoice No. 60 is dated 14-2-1997 showing sale of 670 sheets of plywood valued at Rs. 32,735.90/- to M/s. Glass Center, Kayamkulam and the other one is a Photostat copy of invoice bearing printed s....
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....d 54250 Kgs respectively. 30. I find that the allegation of undervaluation of goods and clandestine clearance of goods are not solely based on the statements of the parties concerned. Incriminating documents seized from the factory premises and from the premises of employees'/dealers' of the assessees have been adduced as evidence in support of the allegation. The private documents such as three handwritten price lists seized from the handbag of Sri Ashok Kumar at Sri Mohammad Arabi's office, letter dated 15-7-1996 said to be signed by Sri Narayan Bhat, an employee of Sri Mohammad Arabi, seized from the residence of Sri Khalil Rahiman, M/s. Glass Center, Kayamkulam the dealer of the assessees, a copy of the same letter seized from Sri K. Mohammad Arabi, another letter dated 5-9-1997 addressed to Kodakkada Plywoods, Kollam, and another letter dated 25-2-1996 both seized from the office of Sri K. Mohammad Arabi, three slips seized from the residence of Sri Khalil Rahiman, daily statement of accounts for 17-9-1997, 18-9-1997, 19-9-1997 & 20-9-1997 seized from the residence of Sri K. Mohammad Arabi in which it is stated that cash has been received from T.T. Plywoods, Chittanikkar....
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.....2 M/s. Darvesh Plywoods 1994-95. The evidences relied on for finding clandestine removal by M/s. Darvesh Plywoods are : (i) the day book (C-40) seized from the office premises of M/s. National Boards and M/s. Darvesh Plywoods as per Mahazar dated 23-9-1997, and (ii) statement running into ten written pages captioned '"M/s. Darvesh Plywoods, Badiadka Road, Kumbla 1994-95" contained in the day book having details of 281 invoices from No. 1 to 281 for 1-4-1994 to 31-3-1995 of a total value of Rs. 1,11,03,028/- and the fact that the details of statement and day book agreed. The assessee had not disowned the day book maintained in their office premises which was seized by the officers under Mahazar. It was noticed that certain invoices figuring in the statement in the paper sheets and the day book were recovered from the assessee's dealers. That they bore the seal of check-posts evidenced actual transport using it and in transit check. Shri M. Arabi, Partner of Darvesh Plywoods in his statement dated 4-11-1997 stated that Shri Ravindranath was maintaining the accounts of M/s. Darvesh Plywoods. This was confirmed by Shri K. Ravind....
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....the adjudicating authority found that assessee had not disputed seizure of the documents i.e. Statements of 3 sheets having five written pages with details of sales effected, both local and interstate sales, another set of papers in five sheets having the same details and invoices used for transportation of goods as evidenced by the seals and signature of commercial tax department during in-transit checks recovered from the premises of various dealers. The contention of the assessee that the sales figure in the statement included those of non-excisable items needs consideration. 1996-97 Here reliance is placed on the P&L account and balance sheet of the unit for the year 1996-97 contained in the file seized from the office of M/s. National Boards and M/s. Darvesh Plywoods. The balance sheet is signed by the proprietor and shows a turnover of Rs. 1,10,27,544/-. The file also contained details of annual/monthly turnover of the group companies mainly for the year 1996-97 in sheets of paper; one each sheet in the file contained details of sales effected by M/s. Mailatty Wood Industries during November, 1996 to March, 1997 as Rs. 44,26,463/-. On going through the contentions of the p....
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....d for the period from 2-1-1997 to 26-9-1997. Both the registers were seized under mahazar from the unit after search. Shri Joyce Kurian, clerk and Shri Shamsudeen, supervisor of the unit confirmed the entries in the register as representing actual clearances effected. The sales invoices of the unit when compared with details of clearances entered in the second register were found to disagree in majority of cases and Shri Joyce Kurian and Shri Vijaya Rao of the factory deposed that all invoice books except the Book No. 5 seized by the department were not the true ones. This was corroborated by the result of verification that the details of invoices in Book No. 5 tallied with the entries in the second register. Certain invoices of the assessee recovered from assessee's dealers differed with office copies of the same available in Book Nos. 1 & 4. The assessee's defence that the registers were unofficial and showed anticipation of each supervisor about possible production in each shift if necessary infrastructure such as power were available and that the register had no backing of law is not an acceptable explanation. It is churlish to argue that somebody records production based on h....
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.... date-wise, batch-wise production, unit-wise dispatch, weekly settlement etc. proved to be maintained in the course of normal day to day business by the units. The Commissioner confiscated plywood valued at Rs. 2,86,389.20 seized from Shri Khaleel Rahiman under Rule 173Q of Central Excise Rules with an option to redeem the same on payment of a fine of Rs. 50,000/-. He also confiscated plywood seized from Shri Mansarool Huck valued Rs. 15,056.20 under Rule 173Q and with an option to redeem the same on payment of fine of Rs. 1,000/-. The case for confiscation of these goods have been correctly found in para 57 and 58 respectively of the order by the Commissioner. The penalties imposed on Shri Khaleel Rahiman and Shri Mansarool Huck are also legal and proper. 22. The Commissioner dropped proposal to confiscate the currency of Rs. 20,66,940/- for want of evidence that the same represented sale proceeds of clandestinely cleared excisable goods. He also dropped the proposal to club the clearances of all the appellant units failing to find that they operated a common fund and they were not centrally administered by Shri M. Arabi as alleged. Proposals contained in 12 show cause noti....
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....e was made following the principle of preponderance of probability. As rightly argued by the Revenue, no systematic record of evidence is left by persons engaging in transactions involving evasion. We find that evaders are always clever and ingenious in executing their criminal design. In the instant case we find that a number of firms either proprietary or partnership owned by Shri Mohammed Arabi and his relatives indulged in evasion of excise duty by organized operation of clandestine clearances as well as undervaluation with Shri Arabi leading and guiding the rest. Shri Mohammed Arabi coordinated the activities with the help of Shri Narayan Bhat employed in his office who circulated a revised pricelist secretly among the dealers of the appellants under his signature. According to the Revenue, he was the second in command and managed the illegal activities of the appellants. On simultaneous raids on 23rd March, 1997, the same pricelist dated 15-7-1996 was recovered from the premises of a dealer as well as the office of Shri Arabi from where it had originated. Further investigations established that this pricelist had been operated. Invoices were raised for payment of duty on lowe....
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....ion by third party witnesses. The appellants have relied on the judgment of the Apex Court in the case of K.I. Pavunny [1997 (90) E.L.T. 241(S.C.)]. Their lordships had dealt with retraction of confessional statement by the accused, and held that voluntary confession could be sole basis for conviction. If retracted, Court was required to examine whether it was obtained by threat, duress, or promise and whether the confession was truthful. In case of retraction, prudence and practice required that a Court should seek assurance by way of corroboration from other evidence. We find that in the instant case, the findings of the adjudicating authority are not based solely on the statements of witnesses but such evidence also corroborated by the documentary evidence recovered from the appellants under mahazar. Of course, there is no tangible direct evidence for appellants collecting suppressed value or for clandestine clearances. We find that the preponderance of evidence available establish the Revenue's case. The appellants have relied on the Apex Court judgment in the case of Alnoori Tobacco Products [2004 (170) E.L.T. 135 (S.C.)]. In this judgment, the Hon'ble Apex Court held that a p....
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..... v. C.C.E, Mumbai [2003 (152) E.L.T. 131 (Tri.-Del.)]. In this case it was laid down that charge of clandestine removal/manufacture of the goods by the assessee had to be established by the department with cogent, convincing and tangible evidence and a such a charge could not be based on assumptions and presumptions. In the instant case we find that the Commissioner found clandestine clearances not on the basis of assumptions and presumptions.   (c) New India Dyeing and Finishing Mills v. CCE, Chandigarh [2004 (165) E.L.T. 316 (Tri.-Del.)]. In this decision the Tribunal held that the department was not required to prove a case of clandestine clearance with mathematical precision. But it has to make out a case at least on the basis of preponderance of probability. We find that the impugned order does not fail this test. 27. With special reference to finding of clandestine clearances the appellants have relied on several case laws, inter alia, the following, citing the respective ratio which are reproduced hereunder : (1) Gurupreet Industries v. CCE [1996 (82) E.L.T. 347 (Tri. - Del.)].  ....
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....so the incriminating documents. In any type of clandestine activity, the persons try their best not to leave any evidence. We cannot expect persons indulging in clandestine clearance to faithfully put the details of all such clearances in some register and append their signature. This is never done. Hence, clandestine activity at best can be established only by circumstantial evidence. It should also be borne in mind that it will be humanly impossible to establish every link in the chain of clandestine activity......... We are very sure that humanly it would be impossible to establish all the links of clandestine activity without any break. In this case, the statements or the admissions are supported by the recovery of non-duty paid goods as well as incriminating documents......... Hence, in our view, the adjudicating authority has rightly confirmed the demand based on the quantity of 11 lakh Lmts. of MMF cleared without payment of duty on the basis of admission by Shri Gopal Gupta, corroborated by the incriminating documents, unaccounted goods and the statements of all others. When a fact is admitted it doesn't need further corroboration. We have no reason to believe that the st....
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....nothing on record to show that they were effectively retracted within close proximity of the Revenue obtaining them. On the contrary, none retracted them. The only discordant note is when some resiled during cross-examination at a much later date. We cannot allow this appeal only on this ground. It is not that Revenue had denied cross-examination of all witnesses. Looking into their large numbers, they had given appellants an opportunity to chose five witnesses who could be summoned. In our view, this course of action was sufficient to establish a preponderance of probability on either side......." (v) Talbalbir Singh v. CC, Delhi [2001 (128) E.L.T. 405 (Tri. - Del.)] is cited to rely on the following observation : "The details given in the statement in respect of smuggled gold and their sale proceeds by the appellant are only exclusively and especially within his knowledge. Therefore, the contention of the appellant is that the statement was recorded under coercion has no force. The retraction of statement of the witnesses in the cross-examination will not help the appellant as the persons, who retracted the statements, were his employees and were working....
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....the statements were recorded over a period of time and since during that period the persons whose statements were recorded did not complain of any threat or duress, therefore, claiming duress and threat is an afterthought. (viii) Following paragraphs of Swastik Sanitary Wares Ltd. v. CCE, Ahmedabad [2001 (129) E.L.T. 373 (Tri. - Del.)] are relied on. "12. The statements recorded under the provisions of the Central Excises Act were not retracted. It was only in reply to the show cause notice that various averments made in the statements were sought to be challenged and explained. The statements contained a number of factual details which obviously could not be dictated by anyone who was not concerned with the affairs of the company. The plea that the original statements were given "out of frustration, exasperation and anxiety" could not be believed (refer reply of Shri G.B. Mishra at page 103 of the paper book). The noticees had not substantiated the plea of coercion, pressure, interpolation, fabrication etc. 13. The allegations are based on documentary evidence of the appellants themselves. Factual details, inauthentic documents could not be brushed aside by general denials." (....
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.... the necessary facts though not proved strictly in conformity with the Evidence Act. The evidence must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. The standard of proof is not proof beyond reasonable doubt 'but' the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a strait jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries." (xi) T. Shankarprasad v. State of A.P. [2004 (164) E.L.T. 143 (S.C.)] "11. Proof of the fact depends on the degree of probability of its having existed. T....
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....1-7-2000 should be determined by the Commissioner on the basis of the available evidence in accordance with law. Once the normal price in respect of each variety of goods is decided then that value should be adopted for calculation of duty. Once that is done the differential duty can be calculated. Therefore, this cannot be done at the level of the Tribunal. All the evidences have to be examined. We make it clear that on the basis of the available evidence, the normal price should be decided by the Commissioner in respect of the goods cleared during the relevant period. Once that is done, that would be applicable to all clearances. We want to reiterate that even by the party's own submissions, the normal price would be applicable to all the clearances made prior to 1-7-2000. Therefore we have to remand the matter to the Commissioner for deciding the normal price in respect of each type of goods cleared by the party during the relevant period and compute the differential duty. Needless to say that the normal price would be arrived at in accordance with the law which prevailed at that time." During the material period, excisable goods subject to duty on ad valorem basis had to be as....
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....n concrete evidence becomes a weak defence. There is no dispute that Shri Arabi controlled all these units; and he operated mainly through Shri Narayan Bhat who acted at the behest of Arabi. Such technical objections as Shri Bhat being not on the muster roll of A1 to A8 and his statements are third party evidence deserve to be ignored in view of the facts of the case and we do so. The case laws cited by the Revenue amply support our reasoning. Commercial offences involve usually huge amounts and intelligent methods are adopted without leaving evidence that can be easily gathered. However, it is universal that any crime will leave some evidence to be picked up by a competent investigating agency. In this case, authorities took strenuous efforts and gathered possible evidence adequate to find evasion by the appellants. In the case of Gulabchand Silk Mills v. C.C.E, Hyderabad-II this Bench observed that clandestine activity can at best be established only by circumstantial evidence and it would be humanly impossible to establish every link in the chain of clandestine activity without any break. We find that this observation applies entirely to the instant case. 31. As regards cl....