1985 (12) TMI 150 - AT - Central Excise

Summary

Issues Involved:
1. Admissibility and credibility of the inculpatory statement by A.J. Patel.
2. Onus of proof regarding clandestine removal of excisable goods.
3. Relevance of the findings of the Additional Collector in a different case.
4. Presumption of the truth of documents u/s 36A of the Central Excises and Salt Act, 1944.
5. Maintainability of the cross-objection by the respondents.

Summary:

1. Admissibility and Credibility of the Inculpatory Statement by A.J. Patel:
The primary issue was whether the inculpatory statement recorded from A.J. Patel, which was confessional in nature, could be accepted and acted upon. The statement was found to be voluntary and true, as it was never retracted and was attested by J.C. Patel (A.J. Patel's father) and Jayaraman (the power of attorney of the respondent-firm). Additionally, N.D. Patel, a partner of the respondent-firm, affirmed the statement through an independent communication. The Tribunal concluded that the statement was credible and could be relied upon.

2. Onus of Proof Regarding Clandestine Removal of Excisable Goods:
The respondents argued that the onus was on the Department to prove the charge of clandestine removal. The Tribunal held that the Department had adequately discharged this onus through the materials recovered, statements recorded, and surrounding circumstances. The Tribunal emphasized that even if some figures in the red pocket diary were incorrect, it did not discredit the entire case. The evidence pointed to the conclusion that the charge of clandestine removal was substantiated.

3. Relevance of the Findings of the Additional Collector in a Different Case:
The Tribunal found that the Collector (Appeals) erred in placing reliance on the findings of the Additional Collector in a different case involving a sister concern of the respondents. The Tribunal stated that the decision in a different case was neither relevant nor admissible. Even if some entries related to the sister concern were false, it did not logically follow that all entries in the diary were false.

4. Presumption of the Truth of Documents u/s 36A of the Central Excises and Salt Act, 1944:
The Tribunal referred to Section 36A, which presumes the truth of the contents of any document seized unless proven otherwise. The Tribunal cited the Kerala High Court ruling in Kallatra Abbas Haji v. Government of India, which supported the presumption of genuineness of documents and statements unless evidence to the contrary was provided. The Tribunal held that the respondents failed to prove that the red pocket diary was unrelated to the removal of excisable goods.

5. Maintainability of the Cross-Objection by the Respondents:
The respondents' cross-objection was dismissed as not maintainable since the impugned order was entirely in their favor.

Conclusion:
The Tribunal set aside the impugned order of the Collector (Appeals) and allowed the appeal by the Collector of Central Excise, Madras. The charges against the respondents regarding the clandestine removal of excisable goods were substantiated by the evidence on record.