TaxTMI 
TaxTMI 
TaxTMI 
2007 (11) TMI 277
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....ed in the business of manufacture of tread rubber and garden hoses. The partnership firm was reconstituted in 1982 with three partners namely Mr. P.V. Varghese, Mr. P.V. Davis and Mr. P.V. Jose. In 1985 except Mr. P.V. Varghese, the other two partners Mr. Davies and Mr. Jose, retired and the firm thus became a proprietorship concern and continued with the business in the same name. The unit was initially a small scale industry unit and the unit was entitled to exemption from the payment of excise duty. So however declarations were filed with prescribed details for the years 1984-85 to 1987-1988. It is the case of the petitioners that there was a sales depot maintained at Irinjalakuda town since 1982 onwards which was treated as a branch off....
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....n the case. The records kept in the factory were also seized. A search was also conducted in the residential premises of the first petitioner. The sales depot was also searched. The premises of the 7th petitioner at Kunnamkulam was also searched on 23.6.1987. 122 Invoices issued to Shri. Ullas, the 7th petitioner, by the proprietor of the concern M/s. Pokkath Industries and 4 rolls of Tread Rubber weighing 106 kgs. were also seized. 4. After adjudication proceedings, the second respondent by Ext. P1 imposed a duty of Rs.11,94,807.56 and also imposed a penalty of Rs.20,000/- subsequently by Ext. P2 corrigendum order dated 30.12.1988 the penalty was enhanced to Rs.2 lakhs. The petitioners replied by Exts. P2(a) and P2(b). After considering s....
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....not fastened with any liability, those statement may be binding on them the statement maker but not on the manufacturer so their statement could at best be taken only as evidence and merely because they are not retracted, the evidentiary value of such statement given by them tested in the cross examination, has to be evaluated before entering a finding. But the approach made by the authorities would clearly show that whatever statement given by these two persons were straight away accepted by the authorities and confirmed by the Tribunal on the sole ground that whatever their statement in the cross examination contrary to the earlier statement cannot be accepted for the mere reason that they have not retracted from their earlier statement. ....
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....t. P26(a) produced in the case. I find that in his earlier statement as to what has been told by his Manager has not been retracted. The authorities below have evaluated the evidence on record and having come to the conclusion that they have not paid any duty no interference is called for in respect of the said finding in petition under Article 226 of the Constitution of India. Consequently any penalty imposed on the value sought to have been evaded cannot be said to be illegal. But in this case the levy of duty was not confined to the goods thus seized from the petitioners but based on inference drawn that the unit had manufactured larger quantities of tread rubber making use of the carbon black supplied by Mr. John and Balakrishnan Nair w....
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....ty of manufacture using the machinery in question are further matters on which there is no evidence on record. Of course, the burden to produce these types of evidence lie on the petitioners as they are within their specific knowledge. But there is no primary materials to show that purchase were made by the unit in fictitious name and gone for increased production and evaded payment of excise duty on such products. As already indicated except the sole statement of the two persons which has been demolished in the cross-examination, there is no other independent material to support their statement. Hence, the finding entered by the Tribunal is perverse. The Tribunal failed to see that statement made by the two persons on whom no liability is ....