TaxTMI 
TaxTMI 
2026 (1) TMI 641
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....of Rs. 3,486/- totaling to RS. 3,59,093/- involved on 1509.24 bags of 8 gms; under Section 11A of the Central Excise Act. 1944 alongwith interest under Section 11AB of the said Act. The amount so deposited by the party as Rs.25,000/-vide GAR-7 no. 18 dated 19.1.2010 against the said clandestine removal is hereby appropriated. 2. I further confirm the demand of BED of Rs. 94,507/-, Additional Excise duty of Rs. 9,451/-, Ed. Cess Rs. 2,079/- and S & H Cess of Rs. 1,040/- totaling to Rs, 1,07,077/- involved on 300.022 bags of Moni sada 14 gms under Section 11-A of Central Excise Act, 1944 along with interest under Section 11- AB read with Section 11 AA of the said Act. The amount deposited by the party as Rs. 25,000/- vide GAR-7 no. 20 dated 09.02.2010 against the said clandestine removal is hereby appropriated 3. I impose a penalty of Rs.4,66,170/- (Rupees four lacs sixty Six thousand one hundred seventy only ) on party No.1, M/s Kunwar Nagar, Kaimganj, Distt. Farrukhabad Bahadur Shri Kishan Prem under Rule 25 (b) of the Central Excise Rules, 2002 read with Section 11-AC of the Central Excise Act, 1944; 4. I also impose personal penalty of Rs.4,66,170/- (Ru....
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.... 0 0 0 17 61 14 0 0 0 0 0 18 62 34 0 0 0 0 0 19 Overleaf of page 62+63 14 0 0 115 0 0 20 Overleaf of page 63+64 04 0 0 185 0 0 21 65 05 0 0 0 0 0 22 66 18 0 0 0 0 0 23 Overleaf of page 66+67 09 0 0 0 0 0 24 68 03 0 0 0 0 0 Total 1502 262 0 300 0 11 2.3 The diary also contained the details of the purchasers and payments received as detailed in table below: S No Page No. Of the Red Diary Purchaser Amount Remark 1 12 Prateek Rastogi Nil 1 bag balance 2 13 Vijay kampil Road 2740 Last balance 3 14 Ram Ashre kampil Nil 2 Bags last balance 4 15 Anan Bhure 360 Last balance 5 16 Nagesh 3840 Last balance 6 17 Babloo 26965 Balance 7 18 Maa Bhagwati Kirana Store Nil 4 Bags last balance 8 19 Sunil 770 Last balance 9 20 Vipin Chiloka 1950 Last balance 10 21 Kamlesh Bhardwaj 85980 Last balance 11 22 ....
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....on of Rules 4,6,8,10 &11 of Central Excise Rules 2002 should not be demanded and recovered from them under Section 11-A of Central Excise Act, 1944 along with interest under Section 11- AB read with Section 11 AA of the Act ibid; (iii) The penalty should not be imposed on party No.1 under Rule 25 (b) of the Central Excise Rules. 2002 read with Section 11- AC of the Central Excise Act, 1944 for violation of Central Excise Act and Rules mentioned hereinabove; (iv) The penalty should not be imposed on party No.2 under Rule 26 (b) of the Central Excise Rules, 2002 for involving himself in manufacture of unaccounted goods and removal of the same without issue of invoice/bills and without payment of central excise duty due thereon. 2.6 The case was adjudicated vide Order in Original referred in para 1.2 above. 2.7 Aggrieved by the order both appellant and Shri Ajay Gupta, Partner of the firm filed appeal before Commissioner (Appeal). Appeal filed by the partner was allowed and that filed by the appellant was dismissed. 2.8 Aggrieved appellant has filed this appeal. 3.1 I have heard Shri Rishi raj Kapoor Advocate for the appellant and Shri Manish Raj, Authori....
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....ant No. 2, in his subsequent statement dated 25/03/2011, once again admitted that 1505 bags of 8 gms UMBCT and 300 bags of 14 gms UMBCT were manufactured and removed clandestinely, without entering the same in the statutory records and without payment of excise duty. At no stage of the appellate proceedings has the appellant No. 2 retracted from his confessional statement or has produced any evidence before me to show that his statements dated 11/01/2010 or 25/03/2011 were recorded under duress. Clandestine removal has been admitted by the appellants in their statements recorded under section 14 of the Central Excise Act and this has much evidential value in the absence of any contrary evidence. It is established from the records that the aforesaid statements were given by the appellant No. 2 out of his own volition and there is no allegation of coercion, threat, force, duress or pressure being utilized by the officers to extract the statements. In this context. the Hon'ble Supreme Court in the case of Commissioner of Central Excise Mumbai Vs. Kalvert Foods India Pvt. Ltd had observed that "The statements were recorded by the Central Excise officers and they were not police off....
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....r Rule 25 of the Central Excise Rules 2002, no separate penalty is warranted upon the appellant No. 2 under Rule 26,ibid. 4.4 Order in original records the findings as follows: "I have carefully gone through the case records, submissions made in the replies made in defence, reiterated during the course of personal hearing and find 'that entire case of the party No.1 and party No.2 has been built upon the sole pleadings that the confessional statement of Shri Ajay Gupta, partner is not supported by any corroborative evidence and as such in view of catena of decisions, the statement of the partner can not be taken as substantial and corroborative evidence in absence of any additional material. At the same time, I find that that the parties have not denied the recovery of Red coloured diary titled as "LAKSHMI BOOK" having 68 pages containing details of UMBCT manufactured and cleared. They have also not been able to further deny the contents of aforesaid "LAKSHMI BOOK' evidencing the details of amounts standing balance upon various purchasers and the details of purchasers of UMBCT baqs and payment made to the `party'. The details of aforesaid "LAKSHMI B....
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....No.1 and 2 and in the light of decision of Hon'ble Tribunal delivered in the case of Peeru Lal vS. Commissioner Customs, Jaipur -1999 (105) E.L.T. 396 (Tribunal), there is no need of to further justify the allegation of clandestine manufacture & removal of excisable commodities. Further, in the most relevant and identical decision given in the case of Whale Stationery Products Ltd. vs. CCE, Meerut [2004 (168) E.L.T. 405 (Tri. - Del.)], it has been held by the Division Bench of Hon'ble Tribunal in para 13 of the decision that "Where confessional statement and documentary evidence were in place, the there was no need of any further evidence to establish clandestine removal of the goods. Such clearance already stood established." In another case of CCE, Chandigarh VS. NABHA STEELS Ltd. [2004 (169) E.L.T. 345 (Tri. Del.)], while allowing the appeal of the Revenue it has been held by the Hon'ble Tribunal in Para 2 of their decision that, "2..... .... This plea could not be allowed to be taken by them in the face of the confessional statement of Ajay Goyal, Director of the respondents before the Excise staff at the time of checking. The respondents are bound by the a....
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....tify the relevance of series of case laws relied upon in support of their contentions and in view of the above, the series of decisions relied upon by the Party becomes not applicable under the facts and circumstances of the present case. Further, the party is not correct in submitting that in the present case penalty under Rule 25 and 26 is not imposable being the subject matter revolves around the interpretation of statute. In this regard, I observe that the provisions of Rules 4,6,8,10 and 11 of Central Excise rules,2002 are very clear and there is no ambiguity in the language of the aforesaid Rules, which do not permit anybody to manufacture, store and clear/ remove the excisable goods defined under Section 2(d) of the Central Excise Act, 1944 r/w Section 3 of the said Act, contrary to the manner prescribed under Rules 4,6,8,10 and 11 of Central Excise Rules,2002, therefore, there is no force in the submissions of the parties. In the result, the party no.2 is liable for penal action under Rule 26 of the Central Excise Rules, 2002 r/w Section 11AC of the Central Excise Act, 1944. Moreover, the party No.2 himself averred in his defence reply [incorporated in Par....
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....No 182/CE/LKO/2012 dated 26.03.2012. However this order has been set aside by the CESTAT vide Final Order No 52680/2014 dated 30.06.2014 in Excise Appeal No 1289/2012-EX (SM), observing as follows: 4. After hearing both the sides, I find that the appellant, during adjudication, had taken stand that the goods were not fully manufactured in as much as the process of lime mixing was to be done. The plea stand rejected by the authorities below as afterthought. 5. There is no test conducted by any expert so as to conclude as to whether the lime mixing has already done or not. As such only fact of excess goods, which are also disputed by the appellant to be not fully finished, read with the statement, cannot be held to be confiscable, in the absence of any evidence to show that they were either in the process of being removed clandestinely or were meant for clandestine removal. Accordingly, I set aside the impugned order and allow the appeal with consequential relief to the appellant." Counsel of appellant has relied upon this decision of the tribunal and argued that both the proceedings were result of the same search made on the 11.01.2010, hence this decision shoul....
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....any relation with the "Red Diary titled Laxmi Book" and his statement was taken on force. In support a notarized affidavit reproduced below was filed. This application was allowed to be taken on record by Miscellaneous Order No. 70086/2017 dated 21.03.2017. 4.10 By the above narration I find that the appellant who had never disputed the recovery of "Red Diary titled Laxmi Book" from his premises and his connection with the said diary, all of sudden by the advent of new counsel started disowning the diary and denying his connection with the same. I do not find any merits in the said submissions as the affidavit claiming so has been filed for first time in 20.01.2017 in respect of the recovery made from the premises of the appellant on 11.01.2010 i.e. more than seven years after the search. The said affidavit was never filed at the time of investigation or in proceedings before the lower authority and not even at the time of filing this appeal or at the time of argument of stay application. It is settled principle that the question sought to be agitated by way of this affidavit is a question of fact and should have been agitated at the first available opportunity. Such belated of ....
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....ed-room through which he or family members could always watch anyone frequenting the place where the contraband was concealed. This fact becomes more relevant when we consider that after concealment of the contraband in the compound one would ensure that others having access to the compound may not indulge in digging and carrying away the same. As soon as the appellant and/or the members of his family had sight of such visitor or movement by others, they would immediately catch hold of such person or would charge them. Obviously, therefore, it would be the appellant who had concealed 200 gold biscuits of foreign marking in his compound at a place always visible from his bed-room window. Therefore, the High Court was right in its conclusion, though for different reasons, that Ex. P-4 is a voluntary statement and was not influenced by threat, duress or inducement etc. Therefore, it is a voluntary statement given by the appellant and is a true one. 20. The question then is : whether the retracted confessional statement requires corroboration from any other independent evidence? It is seen that the evidence in this case consists of the confessional statement, the recovery panc....
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.... in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true. These require to be tested in the light of given set of facts. The high degree of proof and probative value is insisted in capital offences. 21. In Kashmira Singh's case the co-accused, Gurcharan Singh made a confession. The question arose whether the confession could be relied upon to prove the prosecution case against the appellant Kashmira Singh. In that context, Bose, J. speaking for Bench of three-Judges laid down the law that the Court requires to marshall the evidence against the accused excluding the confession altogether from consideration. If the evidence de hors the confession proves the guilt of the appellant, the confession of the co-accused could be used to corroborate the prosecution case to lend assurance to the Court to convict the appellant. The Court considered the evidence led by the prosecution, de hors the confession of co-accused and held that the evidence was not sufficient to bring ....
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....f seeking an assurance in support of its conclusion deducible from the said evidence, the confession of the co-accused could be used. It was, therefore, held that the Court would consider other evidence adduced by the prosecution. If the Court on confirmation thereof forms an opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of the guilt of the accused. It is, thus, seen that the distinction has been made by this Court between the confession of an accused and uses of a confession of the co-accused at the trial. As regards the confession of the accused and corroboration to the retracted confession, in Girdhari Lal Gupta & Another v. D.N. Mehta, Assistant Collector of Customs & Another - 1970 2 SCC 530 a Bench of two-Judges considered and held that if the evidence of an investigating officer is found to be reliable, whether it can be used to corroborate the evidence depends on the facts of each case. In that case, relating to the offence under Foreign Exchange Regulation Act, it was held that the evidence of the investigating officer and other evidence could be used to c....
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....ign exchange out of India. The statement made by another person inculpating the petitioner therein could be used against him as substantive evidence. Of course, the proceedings therein were for confiscation of the contraband. In Surjeet Singh Chhabra v. Union of India - 1997 (89) E.L.T. 646, decided by a two-Judge Bench to which one of us, K. Ramaswamy, J., was a member the petitioner made a confession under Section 108. The proceedings on the basis thereof were taken for confiscation of the goods. He filed a writ petition to summon the panch (mediater) witnesses for cross-examination contending that reliance on the statements of those witnesses without opportunity to cross-examine them, was violative of the principle of natural justice. The High Court had dismissed the writ petition. In that context, it was held that his retracted confession within six days from the date of the confession was not before a Police Officer. The Custom Officers are not police officers. Therefore, it was held that "the confession, though retracted, is an admission and binds the petitioner. So there is no need to call Panch witnesses for examination and cross-examination by the petitioner". As noted, th....
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....s. Discussion captures the essence of controversy by its appraisal of alternatives, presentation of pros and cons and review on the touchstone of human conduct and all attending relevant circumstances. Truth and falsity are sworn enemies. Man may be prone to speak falsehood but circumstantial evidence will not. Falsity is routed from man's proclivity to faltering but when it is tested on the anvil of circumstantial evidence truth trans. On scanning the evidence and going through the reasoning of the learned Single Judge we find that the learned Judge was right in accepting the confessional statement of the appellant, Ex. P-4 to be a voluntary one and that it could form the basis for conviction. The Magistrate had dwelt upon the controversy, no doubt on appreciation of the evidence but not in proper or right perspective. Therefore, it is not necessary for the learned Judge of the High Court to wade through every reasoning and give his reasons for his disagreement with the conclusion reached by the Magistrate. On relevant aspects, the learned Judge has dwelt upon in detail and recorded the disagreement with the Magistrate and reached his conclusions. Therefore, there is no illegality....
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....s relied by the appellant were rendered in the similar or identical circumstances. It is settled principle that one addition fact/ evidence makes the case completely different from relied upon by the appellant. Though appellant has relied upon a large number of decisions but have failed to show their relevance in the facts of present case. I find no justification in placing reliance on a decision without showing any relevance to facts of case in hand. 4.15 Hon‟ble Supreme Court has in case of D Bhoormull [1983 (13) ELT 1546 (SC)] observed as follows: "31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in Blatch v. Archar (1774) 1 Cowp. 63 at p. 65 "According to the Proof which it was in the power of one side to prove and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. 32. Smugg....
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....ortation. It is enough if the Department furnishes prima facie proof of the goods being smuggled stocks. In the case of the latter penalty, the Department has to prove further that the person proceeded against was concerned in the smuggling. ***** 43. If we may so with great respect, it is proper to read into the above observations more than what the context and the peculiar facts of that case demanded. While it is true that in criminal trials to which the Evidence Act, in terms, applies, this section is not intended to relieve the prosecution of the initial burden which lies on it to prove the positive facts of its own case, it can be said by way of generalisation that the effect of the material facts being exclusively or especially within the knowledge of the accused, is that it may, proportionately with the gravity or the relative triviality of the issues at stake, in some special type of case, lighten the burden of proof resting on the prosecution. For instance, once it is shown that the accused was travelling without a ticket; a prima facie case against him is proved. If he once had such a ticket and lost it, it will be for him to prove this fact within his s....
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....acts admitted in the proceedings need not be proved by the other party. In the case of System and Components [2004 (165) ELT 136 (SC)] Hon'ble Supreme Court has observed as follows: "5......Once it is an admitted position by the party itself, that these are parts of a Chilling Plant and the concerned party does not even dispute that they have no independent use there is no need for the Department to prove the same. It is a basic and settled law that what is admitted need not be proved." This decision was relied upon by the Delhi Bench in the case of Sodagar Knitwears [2018 (362) E.L.T. 819 (Tri. - Del.)] which has been affirmed by the Hon'ble Apex Court as reported at [2018 (362) E.L.T. A213 (S.C.)]. 4.17 In case of ITC Ltd. [2004 (177) E.L.T. 433 (SC)] Hon'ble Apex Court observed as follows: "18. Doubtless, the principle of res judicata is a fundamental doctrine of law that there must be an end to litigation. [See Daryao v. The State of U.P. 1962 (1) SCR 574] but the plea of res judicata has to be specifically and expressly raised. [See : Medapati Surayya v. Tondapu Bala Gangadhara Ramakrishna Reddi - AIR (35) 1948 PC 3, 7]. This view has been recen....
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....d of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties . 16. Justice Tek Chand delivering the unanimous Full Bench decision in the case of Mussanunat Lachhmi v. Mussammat Bhulli (ILR Lahore Vol. VIII 384) traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows :- "In the Mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of effective answers to a suit is "a plea by former judgment" and in verse 10, Katyayana is quoted as laying down that "one against whom a judgment had formerly been given, if he bring forward the matter again, must be....
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....ion. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule in so far as it embodied the principles relating to Estoppel by judgment or Estoppel by record. 18. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the Section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the law on the subject. 19. It is nobody's case that the appellant did not know the contents of FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land which was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. There....
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.... issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them." 25. The Bench also noted that the judgment of the Court of Appeal in "Greenhalgh" was approved by this Court in State of U.P. v. Nawab Hussain - (1977) 2 SCC 806 at page 809, para 4. 26. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra - (1990) 2 SCC 715 laid down the following principle : "..............an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation ....
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.... paid. 13. In these circumstances, we feel that when this issue was raised and abandoned in the first writ petition which was dismissed as withdrawn, the principles of constructive res judicata which is laid down under Order 23 Rule 1 of the Code of Civil Procedure, 1908, and which principles are extendable to writ proceedings as well as held by this Court in 'Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior and Others' [1987 (1) SCR 200] would squarely be applicable." 4.20 Thus in view of the discussions as above I do not find any merits in this appeal. 5.1 Appeal is dismissed. (Order pronounced in open court on-07 January, 2026) ============= Document 1 à¤à¤¾à¤°à¤¤à¥€à¤¯ गैर नà¥à¤¯à¤¾à¤¯à¤¿à¤• à¤à¤¾à¤°à¤¤ ऊन TEN RUPEES दस रà¥à¤ªà¤¯à¥‡ रà¥. 10 Rs.10 LAR INDIA equan t NOTARIAL NDIA NON JUDICIAL NOTARIAL GOV 03AD 789376 COPTION A PRADESH में टà¥à¤°à¤®à¥à¤ªà¤®à¤¤ मेमà¥à¤µà¤° से न....
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....¤° गाछी दà¥à¤µà¤¾à¤°à¤¾ फतेहगढ ताथा गया और उसके कमरे में बनà¥à¤¦ करके कहा कि यह लिखो कि डायरी मेरी है और उकà¥à¤¤ डायरी में 30 दोरी सà¥à¤ªà¤° का मात 84 10-01-2010.2 पतà¥à¤°à¥‹à¤‚ की विà¤à¤¿à¤¨à¥à¤¨ तारीखों में à¤à¤µà¤‚ ही सà¥à¤¯à¤¾à¤·à¥à¤Ÿà¥€ से जवान पटवाया जिससे यह पà¥à¤°à¤¤à¥€à¤¤ हो कि यह ड गिरी इनà¥à¤¹à¥€ की हो ....