TaxTMI 
TaxTMI 
2026 (5) TMI 796
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....fter analyzing such lorry receipts, the officers found that the appellant has suppressed taxable turn over in the year 201011 and 2011-12 as detailed in para 6.3 of the show cause notice. 1.1 After conducting investigation, Revenue issued them a show cause notice dated 01.10.2015 demanding differential central excise duty of Rs. 5,69,381/- under Section 11A(4) of the Central Excise Act 1944 along with interest under Section 11AA and penalty under Section 11AC of the Central Excise Act, 1944 read with Rule 25(1) of the Central Excise Rules, 2002. The show cause notice also proposed penal action under Rule 26(1) of the said rules against Shri Chandrakant F Jain, Partner of the appellant firm. 1.2 The matter was decided by the Assistant Commissioner vide order dated 30.11.2016, wherein he confirmed the duty demand of Rs. 5,69,381/- along with interest and equal penalty on the company. He also imposed penalty of Rs.5,50,000/- on Shri ChandraKant Jain, (Appellant 2). Aggrieved with this order, both the appellants filed appeals before the Commissioner (Appeals) who vide impugned order dated 28.02.2018 upheld the order of the lower authority and rejected their appeals. Hence, the pr....
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....seized money having direct nexus with clandestine removal, there cannot be assumption, presumption, surmise or suspicion to hold against assessee. They also rely on following case laws in their support:- a) M/s. Vijay Packaging Systems Ltd Vs. CCE Hyderabad, 2010 (262) ELT 832 (Tri.-Bang.) b) M/s Bhagirathi Iron and Steel Pvt Ltd Vs. CCE, Meerut, 2010 (262) ELT 654 (Tri.-Del.) c) CCE, Pune-I Vs. Rainbow Instruments Pvt Ltd, 2009 (248) ELT 468 (Tri.-Mumbai) d) K. J. Diesels Pvt Ltd Vs. CCE, Kanpur- 2000 (120) ELT 505 (Tribunal) e) Suvarna Polymers Pvt Ltd Vs. CCE, Hyderabad- 2000 (120) ELT 148 (Tribunal) f) Punjab Oil & Silicate Mills Vs. CCE- 1993 (65) ELT 268 g) Rishab Refractories Pvt Ltd Vs. CCE - 1996 (87) ELT 93 * Hon'ble Supreme Court in the case of Ambalal Vs. UOI reported in 1983 (13) ELT 1321(SC) held that burden of proof is on the customs authorities and they have to bring home the guilt to the person alleged to have committed a particular offence under the Acts by adducing satisfactory evidence. They also rely on the decision in the case of Harchand Vs. Additional Collector reported in 1981 (8) ELT 6....
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....case of Metalpress India 2019 (3) TMI 749. * The demand has been confirmed on the appellant firm on presumptions and assumptions and without giving proper findings on various contentions made by the appellant. He Pleaded for allowing both the appeals by quashing order passed by the learned Commissioner (Appeals). 3. During hearing, learned Advocate emphasized that the officers neither inquired from the transporters nor from the recipients mentioned in recovered LRs regarding clearance of the goods by the appellant firm. The department has not established procurement of unaccounted raw materials, consumption of excess electricity, use of additional manpower, receipt of unaccounted sale proceeds, etc. to justify unaccounted manufacture and clandestine clearance of finish goods and its clandestine clearance from the factory without payment of duty. He relied on various case laws to plead that the department failed to adduce sufficient evidence to support allegation of clandestine removal, which in this case is missing. He mentions that in the case of Aum Aluminum Pvt Ltd Vs. CCE, Vadodara reported at 2014 (311) ELT 354 (Tri.-Ahm.), it has been held that charges of clandest....
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.... 10.01.2012, officers recovered a file containing LRs used for transport of finished goods from the factory. The partner of the firm in his statement dated 11.09.2015 confessed evasion of duty, which statement was never retracted by him. She relies on the decision of Hon'ble Gujarat High Court in the case of Pooja Tex Prints Pvt Ltd Vs. Additional Commissioner of Central Excise, Surat-I reported in 2019 (365) ELT 42 (Guj.) having similar facts where voluntary statement of the Director was recorded 8 months after the raid, confessing illicit clearance of goods and such statement was held admissible evidence by the Hon'ble Court. During parallel in this case, she states that statement of the partner was recorded almost 3½ years later who admitted clandestine clearance of finished goods and evasion of duty. The said statement was also not retracted. Therefore, ratio of this decision is equally applicable in this matter. She also relied on the decision of Hon'ble Supreme Court in the case of CCE Madras Vs. Systems and Components Pvt Ltd reported in 2004 (165) ELT 136 (SC) wherein it is held that once party admits the position, no need to prove the same admitted position. She arg....
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....1-12 completely tally with description shown in LRs, but majority of LRs do not have corresponding central excise invoices issued during above period. In respect of such LRs, he admitted to have cleared goods shown in LRs in a clandestine manner without preparing any invoice and without payment of central excise duty with intent to evade central excise duty. Admittal of guilt by the partner in the firm after a gap of 3½ years from the date of search, which remained un-retracted, is admissible evidence to support clandestine clearance of finish goods without payment of duty. 5.2 I find that learned Advocate has cited some case laws on this issue which also seek various other evidences such as unaccounted production, unaccounted purchase, receipt and consumption of raw materials, freight payment, disproportionate power consumption and labour employment and unaccounted sales proceeds. However, in this case, I find that recovery of some LRs for which there is no corresponding duty paying invoice coupled with admittal statement of the partner in the firm are sufficient evidence to establish charges of clandestine clearance. The show cause notice at para 2.3 and 2.4 clearly men....
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....ted 5-5-1998 that the turnover of his firm during 1993-94, 199495, 1995-96 and 1996-97 were Rs. 50 lakhs Rs. 60 lakhs Rs. 65 lakhs and Rs. 75 lakhs respectively. In this subsequent statement dated 18-8-1998 while confirming his previous statements, he further stated that the turnover for the period 1993-94, 1994-95, 1995-96, 1996-97 and 1997-98 were to the tune of Rs. 50 lakhs Rs. 60 lakhs Rs. 65 lakhs Rs. 75 lakhs and Rs. 94 lakhs respectively and he had also undertaken to pay the duty payable on the said goods cleared voluntarily in terms of the aforesaid submissions. He also made payments of Rs. 1.25 lakhs on 31-3-1998 and Rs. 50,000/- on 20-8-1998. In his statement dated 18-8-1998 he had admitted that he was undertaking three types of sales. In one type of sale he used to prepare sales invoices and delivery challans for sale of goods at the factory gate to the genuine customers and the said sales was duly accounted for in the records. In the second type of sales, they were selling the goods at factory gate to various customers on payment of cash without any sales invoice and bills. In the third type of sales wherever they received orders for supply of goods over phone, the good....
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....umbai v. Kalvert Foods India Pvt. Ltd. - 2011 (270) E.L.T. 643 (S.C.) the Hon'ble Apex Court held that if the statements of the concerned persons are out of their volition and there is no allegation of threat, force, coercion, duress or pressure, such statements can be accepted as a valid piece of evidence. In the light of the above decisions, we are of the considered view that the confirmation of duty demand based on the voluntary statements of the Managing Partner of the appellant firm is sustainable in law. Consequently, the interest and penal liabilities imposed on the appellants would also sustain." 5.5 Here, it would be relevant to cite the order dated 31.03.2026 of Hon'ble High Court of Calcutta in the case of Commissioner of Customs Preventive, Kolkata Vs. Sri Anil Kumar Gaur and others, where one of the issue before Hon'ble High Court was "whether a confessional statement under Section 108, retracted after a period of two years, loses its evidentiary value?" Hon'ble Court in para 12.4 (b) has held as under :- "We reaffirm that a statement recorded in a "deemed judicial proceeding" carries a presumption of truth. A non-contemporaneous retraction, appearing after....
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....of Sections 6, 10, and 11 of the Evidence Act, thereby lending corroborative support to the statements made under Section 108. Consequently, it was held that the conviction of appellants was not based merely on confessional statements but in addition thereto, the prosecution provided tangible corroborative evidence. Therefore, the judgment of conviction did not suffer from perversity or legal infirmity. 23. Having considered the matter in its entirety, we find ourselves in agreement with the observations made by the High Court. The findings of guilt recorded by the trial Court, which stand concurrently affirmed by the appellate Court as well as the High Court do not suffer from any perversity, illegality, or manifest error warranting interference by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India." 5.7 I find that the appellant has also relied on certain decisions but the decision of Hon'ble Gujarat High Court in the case of Pooja Tex Prints Pvt Ltd is of a later date. I therefore, hold that the case laws relied by the appellant of various Tribunals are clearly distinguishable in the facts of the case. I further find that during....