TaxTMI 
TaxTMI 
2015 (11) TMI 1243
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.... of broker, Shri. Umesh Modi in Mumbai. 1.1 From the premises of Umesh Modi besides other documents two hand written note books were recovered. One of the note book contains details of the sale, purchase and dispatches for the period from 8/11/2006 to 9/12/2006 and other one contained similar details for the period from 9/12/2006 to 18/12/2006(Date of searches). It was found that each page of these note books contained details of single consignment of TMT Bar, date of dispatch of goods, name of the customer and destination, description of the goods, quantity and rate, overall value of the goods and also name of the supplier. These note books give details of various suppliers which includes Appellant No. 1 in the present case as also details of the customers. These goods were originally cleared by the manufacturers without payment of duty through broker Shri. Umesh Modi during the said period. In addition to these two note books, four other palm sized diaries were recovered which have similar details for the period from Apr 2006 and from 1/7/2006 to 16/12/2006. These note books were detailing both types of clearances i.e. with bills as also without bills. Thus in these four note ....
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....es. The appellant filed appeal against the said order and first appellate authority after considering in detail various submissions, dismissed the appeals of all the three appellants. Aggrieved by the said order the appellant are before this Tribunal. 2. Ld. Counsel's main contention for the appellant No. 1 is that the demand has been confirmed without any solid, direct evidence available with the Revenue. Revenue has not produced any documents i.e. procurement of raw material, transportation details of the clandestine goods, electricity consumption etc. In absence of these documents demand can not be confirmed. On behalf of appellant No. 2, who is partner in the firm appellant No. 1, it was submitted that there is no justification to impose penalty as penalty was already imposed on partnership firm. On behalf of appellant No. 3, it was submitted that his statements were retracted and cross examination of appellant No. 2 was not permitted. Ld Counsel for the appellant quoted the following case laws in support of various contention:- (a) J& K Cigarettee Ltd. Vs. Collector of Central Excise[2009(242) ELT 189(Del)[ (b) Sloto Steel Products Pvt. Ltd. Vs. CCE [2012(....
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....action, reasons for incorrect statement or correct details are given. In fact in the subsequent statements appellant No. 3 has admitted the contents of the earlier statements. It was further admitted this continued not in one statement but for all the statements. As many as 10 statements were recorded over a period of one and half years. Appellant No. 3 could have stated the correct position in subsequent statement. It is thus very clear that the retraction were based upon legal advise and it was not based upon factual position/inaccuracy. In these circumstances, retraction is of no consequences. It was also submitted that the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Mumbai Vs. M/s. Kalvert Foods India Pvt. Lt[2011-TIOL-76-SC-CX] has held that the statements recorded by the Central Excise officers should be relied upon. Hon'ble Supreme Court also held that the statement made by the Managing Director of the Company and other persons containing all the details about the functioning of the company which could be made only with personal knowledge and therefore could not have been obtained through coercion or duress or through dictation. No reasons have been ....
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....antity, rate, specification etc. Demand of duty is on appellant No 1 and not on appellant No. 3. Appellant No. 1 and 2 have admitted details. We also note that from the statements of Appellant No. 3 viz. Shri. Pravesh Gautam, Director of M/s. SSIPL were recorded and in each of the statement he has confessed the details of Shri. Pravesh Gautam could have explained which are the entries relating to them and which are for other firms. In fact in the show cause notice in Annexure I, para 3.3.1.2 it is clearly sated that record No. 23 and 24 do not contain any entry relating to Gautam Enterprises and M/s. Shri Shiv Ganesh Parvati Steel while record No. 26 contains entries of all the three entities. Duty has been demanded based upon record No. 23 and 24 alone. 4.2 We also note that in each statement, Shri. Pravesh Gautam has confirmed details given in earlier statement. We note that Appellant No. 3 viz. Shri. Pravesh Gautam sent retraction of statement almost on all the occasions after recording of the statements. However in none of these retraction correct details were enumerated. On the contrary, in subsequent statements he confirms content of the earlier statements. Under these cir....