TaxTMI 
TaxTMI 
2024 (4) TMI 298
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.... Director of the Appellant Company and Samir Bhagat, present Director of the Appellant Company under Rule, 26 of the Central Excise Rules, 2002 is also assailed by them in the other two appeals. 2. Facts of the case, in brief, is that Appellant M/s. Khatushyamji Re-Rolling (Nanded) Pvt. Ltd. was a manufacturer of M.S. Bars having excise registration for the same. It had also manufactured CTD/TMT Bars as a franchisee of M/s. Kamdhenu Ispat Ltd., Bhiwadi, Rajasthan (Franchisor) using its brand name "Kamdhenu". ADG (DGCEI), New Delhi, on receipt of specific intelligence about evasion of Central Excise duty by way of suppression of production and clandestine clearance of goods, conducted raid in the factory of M/s. Kamdhenu Ispat Ltd. and during investigation recovered relevant data from its computers concerning Appellant's transaction, obtained its printout which were duly certified by Forensic Division, GEQD (Director of Forensic Science, Government of India) and forwarded the same to the Commissionerate at Aurangabad vide covering letter dated 30.03.2012, under whose jurisdiction Appellant's manufacturing unit was situated. Accordingly, show-cause notice was issued to the A....
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....e was categorical denial of the Director of M/s. Kamdhenu Ispat Ltd. that the said premises was not owned by "Kamdhenu" and, therefore, the printout containing money transactions or clearance of excisable goods being not acceptable piece of evidence, the demand can be treated as purely based on imagination and presumption as no cogent evidence regarding etc. raw material procurement, sale, transport etc. were established against the Appellant to substantiate the clandestine clearance, the same would be of presumptive value only, that would not receive concurrence of the Court of law. On this point also, he relied upon the following judgments - a) Oudh Sugar Mills Ltd. Vs. Union of India - [1978 (2) ELT (J172) (SC)] b) J.A. Naidu Vs. State of Maharashtra - [1983 (13) ELT 1611 (SC)] c) K. Rajagopalan Vs. CCE, Madurai - [2002 (142) ELT 128] d) Ghodavat Pan Masala Products Ltd. & Ors. Vs. CCE, Pune - [2004 (175) ELT 182] e) Parshuram Cement Ltd. VS. CCE, Lucknow, CCE, Madurai - [2003 (160) ELT 213] f) Mukesh Dye Works Vs. CCE, Mumbai-VI -[2006 (196) ELT 237] g) Padmanabh Dyeing & Finishing Work Vs. Collector of C. Ex., Vado....
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....ugh the case records, written note and submissions, relied upon case laws and relevant provision of law concerning admissibility of electronic evidence in the instant case. The contention of the Appellant is that it was agreed between Appellant and the owner of the brand M/s Kamdhenu Ispat that for TMT bars manufactured with its logo, royalty of Rs.200 per metric tonne or Rs.4,00,000/- per month, whichever was higher was to be paid and the Show-cause was issued on the basis of Royalty invoices available at page 154-159, annexed to the Show-cause but the argument led by Learned Counsel for the Appellant that the print-out allegedly showing royalty received was entered at the maximum fixed i.e. Rs.4,00,000/- that was divided by royalty of Rs.200/- to arrive at the production figure, is not the allegation in the Showcause or available in the findings of the Commissioner in the Adjudication order. On the other hand, Learned Commissioner has extracted the table from April 2008 to September 2008 month-wise directly from the Show-cause that was generated from the computer print-out to establish the quantity of production and the quantity suppressed by Appellant in which royalty amount var....
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.... Section 65B of the Evidence Act has been scrutinised time and again by the Hon'ble Supreme Court in sensitive cases including that of State (NCT of Delhi) Vs. Navjot Sandhu (Afzal Guru Case) popularly known as Parliament attack case as reported in 2005 (11) SCC 600. It was held in the said case that there is no bar in adducing those documents as secondary evidence under Section 63 and 65 of the Indian Evidence Act but subsequent to the same, it was overruled in Anvar P.V. Vs. P.K. Basheer judgment cited Supra and in the recently pronounced judgment in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors reported in AIR 2020 SC 4908, decided on 14.07.2020, all previous judgments on the issue were discussed and ultimate finding was rendered with a direction to have a re-look as Section 65B of the Indian Evidence Act introduced 20 years ago by the Act 21 of 2000 that has created a huge Judicial Turmoil. Be that as it may, the said judgment till changes are brought into Section 65B, would rule the field in view of operation of Section 141 of the Constitution of India. In their order Hon'ble Supreme Court has differentiated Section 65 into 3 parts namely ....
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.... "A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him." 8.1 Similar views are also expressed by the Hon'ble Supreme Court on 06.10.2023 in Criminal appeal No. 2430/2014 in the case of Balvir Singh Vs. State of Uttarakhand, that being on Section 106 of the Indian Evidence Act, is also applicable to Taxation Statues. It was held in the said judgment: "Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused." 9. Therefore, when Appellant is charged with production of specific quantity and payment of royalty against the said quantity, the burden of proof shifts to it under Section 106 of the Indian Evidence Act and in such circumstances of the case when Hon'ble Supreme Court in the judgment noted in Order-in-Original in the case of M/s D. Bhoormal reported in 1983 (013) ELT 1546 (SC) has clearly stated that law does not requires the prosecution to proof the impossible but it is required t....