2015 (11) TMI 671 - AT - Central Excise

Duty demand - Clandestine removal of goods - Held that - Diaries were recovered in Mumbai from a place where the appellant s office exists. A plea is being made that the office is a common office for three firms. Out of other two firms, one is owned by the father of Shri Pravesh Gautam in the name and style of M/s.Gautam Enterprises and other firm is owned by Shri Pravesh Gautam. The fact that the place is used as common office will not make any difference. - whole case is based upon the three diaries, namely, 23, 24 & 26 and contents of each diary has been explained by Shri Pravesh Gautam, Director in the appellant s firm. We also note that based upon these diaries detailed tabulations were prepared by Revenue indicating various suppliers from whom clandestinely cleared goods were purchased by the appellant. These were again shown to Shri Pravesh Gautam who after going through the diary and the tabulation has confirmed the details in the statements prepared. He has not stated in any of the statements about any particular entry that the said entry pertains to M/s.Gautam Enterprises or any other firm. Under the circumstances, we are of the considered view that the plea of the learned Counsel requires outright rejection and we accordingly do so. Statements of Shri Pravesh Gautam were recorded over a period of more than one year and there are as many as nine statements. We do not find anything contradictory in these statements. We also find that in the subsequent statements including the ones which have not been retracted, Shri Pravesh Gautam has confirmed the details given in the initial statements. It is also see that the retraction letters were sent under Certificate of Posting and not by Speed Post/Registered Post. We have also gone through the retraction letters which do not indicate which portion of the statement is incorrect or recorded under duress. - diaries were recovered from their office and the contents of the diaries are also not under dispute and the contents clearly indicate that the appellant has purchased clandestinely cleared goods without payment from various manufacturers. Under the circumstances, we do not see any reason to give any importance about the non-availability of transportation details or not able to find discrepancy in the factory in the facts and circumstances of the present case - Decided against assessee.

Summary

Issues:
- Appeal against Order-in-Appeal Nos.AKP/NSK/90/2010, AKP/95 to 97/NSK/2010 & AKP/156 to 158/NSK/2010
- Recovery of clandestinely cleared goods without duty payment
- Statements recorded under duress and subsequent retractions
- Cross-examination of suppliers and brokers not allowed

Analysis:
1. The appeals challenged orders related to the recovery of goods without duty payment. Simultaneous searches revealed incriminating documents in the appellant's Mumbai office, including diaries detailing purchases of MS ingots. Statements from suppliers and brokers confirmed clandestine clearances, leading to duty recovery notices.

2. The appellant contended that recovered diaries were common for three firms, and statements recorded under duress were retracted. The appellant also sought cross-examination of suppliers and brokers. However, the Revenue argued that the office was common, statements were consistent, and cross-examination was unnecessary as the appellant confirmed the purchases.

3. The Tribunal noted the case hinged on documents from the appellant's office, with detailed explanations by the appellant's director. Despite retractions, subsequent statements reaffirmed earlier details. The plea for cross-examination was rejected as unnecessary, given the appellant's confirmation of purchases from specific manufacturers.

4. The Tribunal upheld the Revenue's reliance on recovered documents and confirmed duty evasion based on the appellant's own statements and documents. The absence of transportation details or factory discrepancies did not undermine the evidence of clandestine clearances. Consequently, all appeals were dismissed.