TaxTMI 
TaxTMI 
2019 (12) TMI 389
X X X X Extracts X X X X
X X X X Extracts X X X X
....want of appreciable evidence to sustain the allegations in the show cause notice. It was also found, in cross-examination, that the contents of statements, based on which the proceedings had been initiated, failed the test of acceptability. The first appellate authority, on appeal by Revenue, accepted the claim of sufficiency of evidence in the grounds of appeal and remanded the mater back to the original authority to reconsider the evidence before arriving at fresh decision. 4. On appeal of appellants herein before the Tribunal, it was held that such power to remand was not statutorily conferred and, vide order no. A/435-436/2009/SMB/CIV dated 30th July 2009, directed the Commissioner (Appeals) to decide the matter on the evidence available before him. The impugned order is the outcome of the fresh decision. 5. According to Learned Counsel, the notice was issued by placing reliance on the statement of a broker, Shri Farukh Shaikh, from whose possession certain chits and collection books had been recovered during the search of some other premises and he, also proprietor of M/s Zishan Steels and a customer of the appellant, had decoded the chits documenting that the appellants had....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing in the enries in the records recovered from FS, were confirmed by MST in his statements dated 27.12.2006 and 25.01.2007. In statements recorded on 18.12.2006, 19.12.2006, 18.01.2007, 25.01.2007 and 20.03.2007, FS has confessed that entries appearing in the records recovered from him were relating to NSPL and MST. FS is said to have retracted his statements on 20.12.06, 27.01.2007 and 23.07.2007. However, it is pertinent to mention here that while recording his statements on 18.01.2007 and 20.03.2007, FS confirmed his earlier statements. The statements were given voluntarily by him and nowhere he has stated about retractions of the earlier statements. Likewise, MST in his statement dated 25.01.2007 has confirmed the contents of his previous statement dated 27.12.2006 and did not mention anything about retraction. It is not that MST and FS have retracted their statement officially at the first opportunity available to them. If that was the case, they should have retracted their statements at the first available opportunity. I find that the retractions were addressed to the Director General, D.G.C.E.I, New Delhi, whereas the statements were recorded by the office of the Additional....
X X X X Extracts X X X X
X X X X Extracts X X X X
....MST and FS to escape punitive action. Statements of MST are, therefore, valid and beyond doubt which is further corroborated by the statement of FS and the note books/diaries seized from him. Moreover, the payment of Central Excise duty of Rs. 10,20,000/- voluntarily by NSPL even before the statement of MST was recorded, signifies guilt coupled with acceptance of clandestine removal and duty liability on such clandestinely removed goods on the part of NSPL and MST. Retractions are nothing but a well thought out plan and a last ditch effort made by MST and FS to mislead. (iv) Coming to the defence of the respondent that no evidence is forthcoming regarding purchase of raw materials in excess, I place my reliance on the case law of CCE, Madras Vs Systems & Components Pvt. Ltd. - [2004(165)ELT 136(SC}], in which it has been held that what is admitted need not be proved. I also rely upon the decision in the case of Ludhiana Food Products Vs Collector of C Excise - 1989(43) ELT 648(TRI) wherein it is held that " Evidence - Admitted facts not to be proved". (v) The respondent has also argued that private documents seized from a third party has no evidential value. I find that once ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f movement of goods and the last link i.e. buyers were also identified and accordingly statement of 82 buyers of goods, which were cleared clandestinely, were recorded and none of the buyers have retracted their statements. (vii) Coming to the defense of the respondent that when allegation of clandestine clearances are made, it should have mathematical precision, I find that the confessional statements of FS and MST and the authenticity of the entries in the diaries seized from FS has been established on the basis of statements given not only by FS but also by buyers of clandestinely sold goods. The respondent has argued that no discrepancy is pointed out in the statutory records maintained by them. I find that the evidence was unearthed from the broker and it being a case of clandestine removal, the appellant would obviously not keep any record or trace of such transactions. The insistence of the appellant to verify the statutory records in itself is an admittance of guilt since the appellant knows very well before hand that no discrepancy would be found in the records. In today's era of liberalization and self assessment, the onus to discharge appropriate duty rests on the....