1999 (6) TMI 218 - AT - Central Excise

Issues Involved:
1. Artificial splitting of the case by the Central Excise Officers.
2. Reliability of statements made by Shri Gautam Chand Sancheti.
3. Evidence supporting the use of power by the appellant for processing fabrics.
4. Validity of the retraction of statements by Shri Gautam Chand Sancheti.
5. Proper service of summons and representation of the appellant.

Detailed Analysis:

1. Artificial Splitting of the Case:
The appellant argued that the case was artificially split into two separate cases by the Central Excise Officers, one for the seized goods and current liability and another for past liability. The Tribunal did not appreciate this plea, stating that such splitting is often done for good reasons, including the need for quicker adjudication of current liabilities and more thorough investigation of past liabilities involving allegations of willful misstatement or suppression of facts. The Tribunal clarified that the Assistant Commissioner could not decide cases involving past liabilities under Section 11A, which required adjudication by the Commissioner.

2. Reliability of Statements by Shri Gautam Chand Sancheti:
The main evidence relied upon by the Commissioner was the statement of Shri Gautam Chand Sancheti, a partner of M/s. Mool Chand Sujanmal, who had nothing to do with the appellant's unit. The Tribunal found the reliance on this statement unwarranted, noting that Sancheti was not authorized to represent the appellant and his credentials regarding knowledge of the appellant's operations were not recorded. The Tribunal emphasized that Sancheti's statement was unreliable as it was retracted two days after being made and lacked corroboration.

3. Evidence Supporting the Use of Power:
The evidence against the appellant included statements by Sancheti, photographs of machines connected to power, seizure of processed fabric, and panchnamas. However, the Assistant Commissioner had previously discarded Sancheti's statements due to their retraction and lack of corroboration. The Tribunal noted that the Assistant Commissioner's findings, which were upheld in a previous Tribunal order, should have influenced the adjudicating authority's decision. The Tribunal found no substantial evidence against the appellant once Sancheti's statement was disregarded.

4. Validity of Retraction of Statements:
The adjudicating authority had dismissed the retraction of Sancheti's statement as unreliable. However, the Tribunal found this dismissal untenable, noting that no questions regarding the retraction were posed to Sancheti in subsequent statements. The Tribunal highlighted that the retraction was prompt, occurring within two days, and should have been given due consideration.

5. Proper Service of Summons and Representation:
The Tribunal observed that the summons under Section 14 were not served on the proprietrix of the appellant firm but on an employee, Shri Narendra Mahajan. Sancheti's appearance on behalf of all three units without proper authorization was deemed improper. The Tribunal criticized the lack of elementary care in serving the summons and obtaining proper authority for representation.

Conclusion:
The Tribunal concluded that the impugned order was unsustainable due to lack of reliable evidence against the appellant. The reliance on Sancheti's statement was deemed inappropriate, and the absence of corroborative evidence led to the setting aside of the order. The appeal was allowed with consequential relief to the appellant.

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