2010 (10) TMI 457 - AT - Central Excise

Penalty on Department officers - The impugned order of Commissioner,find that the stands officers of the department, penalized under Rule 26 as also under Rule 27, on the sole allegation that they have pre-dated their signatures so as to facilitate Shri Tejas Desai for claiming fraudulent rebate - The said findings are based on the sole statement of Shri Tejas Desai - Apart from the fact that he has retracted the statement, the Commissioner has himself come to a finding that Shri Desai has given a wrong deposition in his statement so as to mislead the investigating officers - The adjudicating authority having himself considered the said statement of Shri Desai being unworthy of credence, the same should not have been adopted by him for imposing penalty upon the officers - The said statement is in the nature of retracted statement of a co-accused and needs further corroboration by independent evidence - There being none in the present case, findings arrived at by the Commissioner cannot be upheld. Again, the appellants contention that non maintenance of proper records by the officers , would not call for penalty imposition under Rule 27 - Hence, set-aside the penalties imposed upon all the three appellants and allow their appeals.

Summary

Issues:
1. Dismissal of appeal for non-prosecution of one party.
2. Allegations against officers for facilitating fraudulent rebate claims.
3. Imposition of penalties under Rule 26 and Rule 27.
4. Validity of statements made during investigation.
5. Role of officers in verifying duty particulars.
6. Consideration of retracted statements as evidence.
7. Maintenance of proper records by officers.
8. Legal precedents regarding statements during investigations.

Issue 1: Dismissal of appeal for non-prosecution
The judgment dismisses the appeal of one party, Shri Tejas Desai, for non-prosecution due to repeated non-appearance, as the matter had been adjourned multiple times in the interest of justice.

Issue 2: Allegations against officers for facilitating fraudulent rebate claims
The officers were accused of putting ante-dated signatures on ARE-1s, enabling erroneous rebate claims. The judgment highlights the allegations, stating that signing the documents before the actual date facilitated the fraudulent claims, as per the statement of Shri Tejas Desai. The officers' contention of not signing the documents during the alleged period was deemed untenable.

Issue 3: Imposition of penalties under Rule 26 and Rule 27
Penalties were imposed on the officers under Rule 26 and Rule 27 based on the alleged ante-dating of signatures. The judgment questions the validity of imposing penalties when no goods were involved, as argued by the officers' advocate.

Issue 4: Validity of statements made during investigation
The judgment discusses the reliance on Shri Tejas Desai's statement, which was retracted, as the primary evidence against the officers. It emphasizes the need for corroborative evidence to uphold findings based on retracted statements.

Issue 5: Role of officers in verifying duty particulars
The officers' role was to verify duty particulars under Rule 18 of the Central Excise Rules, not to physically examine goods. The judgment questions the basis of allegations solely on Shri Tejas Desai's statement, especially after his retraction.

Issue 6: Consideration of retracted statements as evidence
The judgment emphasizes that retracted statements of co-accused, like Shri Tejas Desai, require further corroboration by independent evidence to uphold findings. It questions the imposition of penalties solely based on retracted statements.

Issue 7: Maintenance of proper records by officers
The judgment highlights the officers' argument regarding the absence of instructions for maintaining consolidated registers and the practice of maintaining party-wise registers. It questions the imposition of penalties under Rule 27 for alleged record-keeping discrepancies.

Issue 8: Legal precedents regarding statements during investigations
Citing legal precedents, the judgment underscores the need to consider statements in their entirety and the requirement for corroboration from independent sources. It sets aside the penalties imposed on the officers based on these principles.

In conclusion, the judgment dismisses Shri Tejas Desai's appeal, while setting aside the penalties imposed on the officers due to insufficient corroborative evidence and the retraction of statements. It emphasizes the importance of considering statements in full and the necessity of independent corroboration in such cases.