1985 (7) TMI 237 - AT - Central Excise

Reference to the High Court - Seized account books claimed by appellant to be fictitious and entries therein imaginary

Summary

Issues:
1. Onus of proof on the applicant regarding the authenticity of account entries.
2. Legality of invoking Sections 106 and 114 of the Evidence Act by the Department.
3. Imposition of penalty without determining the value of gold.
4. Admissibility of statements recorded from the applicant.
5. Reliance on seized account books by the Tribunal.
6. Guilt of contravention of Section 27(1) of the Act without proving transactions in gold.

Analysis:

1. The Tribunal held that the applicant must prove the fictitious nature of the account books and entries, as the burden of proof lies on the party asserting a fact. The Tribunal distinguished a previous case cited by the applicant, stating it was not applicable to the current case. The Tribunal found against the applicant on this issue.

2. The Tribunal referred to a Supreme Court decision, stating that the Department can utilize Sections 106 and 114 of the Evidence Act based on the circumstances of the case. The Tribunal rejected the applicant's argument on this issue.

3. The Tribunal dismissed the argument that a penalty cannot be imposed without determining the value of gold. It emphasized that the transactions evidenced by the account books justified the penalty, and this was a factual assessment, not a legal issue.

4. The Tribunal found the statements recorded from the applicant to be admissible, rejecting the claim of non-compliance with Section 70 of the Act. It stated that such claims are factual and not legal issues.

5. The Tribunal addressed the retention of seized account books, stating that even if retained unlawfully, the entries would not automatically become inadmissible. It cited various legal precedents to support its conclusion and rejected the applicant's argument on this issue.

6. The Tribunal concluded that the applicant could be found guilty of contravening Section 27(1) of the Act based on the evidence presented, emphasizing that this was a factual determination and not a legal issue warranting reference.

In summary, the Tribunal dismissed all the issues raised by the applicant, finding no merit in any of them and ultimately dismissing the reference application.