2018 (5) TMI 1456 - AT - Central Excise

Clandestine manufacture and removal - demand based on incriminating documents recovered from the factory of the appellant, statements recorded from various persons including the transporter as well as various buyers and also significantly the data printed-out from the electronic devices recovered during the search proceedings - data printed-out from the electronic devices - Held that - It is not in dispute that these electronic devices were recovered from the factory premises of the appellant under proper Panchnama. Several summons were issued to Shri Mukhtiar Singh, prop. requiring the presence in the office for retrieval of data from such devices. But Shri Mukhtiar Singh chose to ignore such summons and did not respond with his presence. Finally, retrieval of data from the resumed electronic devices was done on 27.08.2013 with the help of an expert under proper Panchnama - it is clear that the data in the electronic devices were in relation to the transactions undertaken by the appellant and for such transactions, no evidence of excise duty payment have been produced by the appellant. Retracted statements - Held that - It is a settled position of law that the original statement does not become null and void only because it has been retracted on a subsequent date. Such retraction is to be assessed by the adjudicating authority in the light of the circumstances of the case and the existence of corroborated evidence - In the present case, we note that Shri Mukhtiar Singh has gone against his original statement, several years after the initial admission. Likewise, the buyers retracting such statements at the time of cross examination by itself will not make their statement inadmissible. Such retraction especially when supported by other evidences is to be ignored. The allegation of clandestine manufacture and clearance and evasion of duty stands established - confiscation upheld - appeal dismissed - decided against appellant.

Issues Involved:
1. Admissibility of data retrieved from electronic devices.
2. Validity of retracted statements by the appellant and buyers.
3. Distinction between the premises of GHI and GHMW.
4. Allegation of clandestine manufacture and clearance.
5. Confiscation of seized goods.

Issue-wise Detailed Analysis:

1. Admissibility of Data Retrieved from Electronic Devices:
The data retrieved from electronic devices was a significant part of the evidence. The appellant argued that the data should not be considered as it was retrieved without the presence of any authorized person from the appellant's side. However, the tribunal noted that the electronic devices were recovered under a proper Panchnama, and multiple summons were issued to Shri Mukhtiar Singh, prop. of GHI, for his presence during the data retrieval, which he ignored. Consequently, the data was retrieved in the presence of two respectable witnesses and a computer expert. The tribunal concluded that the data is admissible as evidence, noting that the details from the electronic devices tallied with the physical copies of the challans and other documents seized during the search.

2. Validity of Retracted Statements:
The appellant contended that the statements of Shri Mukhtiar Singh and some buyers, which were retracted later, should not be considered. The tribunal held that retraction of statements does not automatically render them null and void. The original statements remain valid unless proven otherwise. The tribunal referenced several case laws to support this view, emphasizing that retracted statements supported by corroborative evidence should be considered. The tribunal noted that Shri Mukhtiar Singh's retraction came years after his initial admission, and many buyers also confirmed the receipt of goods, reinforcing the validity of the original statements.

3. Distinction Between the Premises of GHI and GHMW:
The appellant claimed that GHI was only a distributor, and the manufacturing was done by GHMW, located at a different address. An affidavit and electricity bills were submitted to support this claim. However, the tribunal found this claim to be unconvincing and belated, as it was not made during the investigation or adjudication. The Panchnama from the search indicated that the premises at WZ-422, 423, and 424 were interconnected and used collectively for manufacturing activities. The tribunal concluded that the manufacturing was indeed carried out by GHI.

4. Allegation of Clandestine Manufacture and Clearance:
The tribunal reviewed the evidence, including incriminating documents, statements from various persons, and data from electronic devices. The evidence indicated that GHI was involved in the clandestine manufacture and clearance of goods without paying excise duty. The tribunal noted that the appellant failed to provide evidence of excise duty payment for the transactions identified. The investigation revealed that GHI was manufacturing door closers under various brand names and selling them through dealers without proper documentation and duty payment.

5. Confiscation of Seized Goods:
The tribunal upheld the confiscation of seized goods, allowing for redemption on payment of a fine and penalty. The duty demand of ?3,64,33,287/- along with interest and equal penalty was confirmed. Penalties were also imposed on various connected persons, including buyers. The tribunal found that the evidence supported the conclusion of clandestine manufacture and clearance, justifying the confiscation and penalties imposed.

Conclusion:
The tribunal dismissed the appeals, upholding the impugned order in its entirety. The judgment confirmed the allegations of clandestine manufacture and clearance, validated the data retrieved from electronic devices, and rejected the claims of the appellant regarding the distinction between GHI and GHMW. The confiscation of seized goods and the duty demand were also upheld. The tribunal's decision was pronounced in court on 23.05.2018.

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