9911796707
TMI Blog1993 (2) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The brief facts of the case are that on 20-11-1980 a search was conducted in the premises of M/s. Mir Syed Ali (Proprietor of Mir Syed Ali), a Biri Manufacturer of Moshat, 24 Paraganas which resulted in recovery of an excess stock of 15,000 Nos. of unbranded Biris which were seized. A statement was obtained from Taj Mahammed, son of Mir Syed Ali who was not in a position to give statement because of old age wherein the said Taj Mahammed, inter alia, stated that they used to manufacture Biri on behalf of the appellants out of Biri Tobacco and Biri leaves supplied by the appellants under Rule 56B of the Central Excise Rules, 1944 (the Rules hereafter) and that all Biris manufactured although sent to the appellants were not accounted for in the statutory records. The officers also recovered and seized a number of records from the premises of Mir Syed Ali believed to be incriminating in nature. The said seizure was finally adjudicated by the Superintendent (Tech.) of Central Excise, Calcutta-I Division by his Order No. 17(4-11) 80/23/Supdt.(T)/80 dated 17-8-1981 wherein it was admitted that neither Taj Mahammed nor his other three brothers had been living with their father Mir Sye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars, the workers during that period used to look after the business of his father. Shri Mohammed also stated in the cross-examination that during the course of search he was called by a fat officer to witness the search. Though he had not given any written statement he put his signatures on some written papers as per directions of that officer. After the said cross-examination personal hearing was also granted to the appellants and the impugned order dated 15-2-1990 was passed. 5. The learned Advocate, Shri S.K. Roychowdhury appeared for the appellants and contended that the show cause notice was issued primarily basing on the statement of Shri Taj Mohammed as well as on the seized records from the premises of Mir Syed Ali. Shri Roychowdhury pointed out that according to the statement of Taj Mohammed recorded by the officers he had stated that the records recovered accounted for biris manufactured on behalf of the appellants and sent to them. But they were not accounted for duly by the statutory records. In this connection he pointed out that once the statement of Taj Mohammed is brushed aside as hardly believable, then reliance on the records seized from the premises of M/s. Mir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er showing receipts of damaged biris from dealers, which were produced before the Collector at the time of hearing and it was not taken note of. Hence the order of the Collector that the appellants failed to furnish any evidence in this regard, is not a correct statement. It was also pointed out that the appellants used to maintain a Sales Tax Register showing therein sale of all biris. Even though the appellants were not bound to maintain it they did it for their own convenience, which showed that there was no clandestine removal. He pointed out that the records maintained at Nowgaon cannot be relied upon as the records showing clandestine removal of biris. He also pointed out that although it was stated by the person concerned at Nowgaon in his purported statement that all papers relating to despatch of biris from Calcutta were sent back to Calcutta after receipt, no such documents could be recovered from the premises at Calcutta by the officers during their subsequent raids in the above premises. This goes to show that there was no clandestine removal. Further, the appellants are working under physical control system and all the acts of manufacture and clearance are under the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not sure as to the exact quantity of so-called defective/damaged biris. Hence, this was only an assumption which was not corroborative of any evidence. With respect to the 10,27,27,794 biris, the claim of the appellants was, that they were unbranded biris relating to the period prior to 1-3-1979. But the appellants had not substantiated this submission. He also pointed out that they had to get biris fully manufactured with Brand name by sending raw-materials and obtaining semi-finished biris under Rule 56B of the Central Excise Rules to cope up with their business activities. Hence, without any supporting and corroborative evidence, this contention of the appellants that all the biris prior to 1-3-1979 were unbranded ones, cannot be believed. In respect of the balance quantity of 6,04,67,931 biris the appellants could not adduce any explanation in defence that there were duty-paid. Hence the clandestine removal is clearly proved. He reiterated the reasonings in the impugned order and prayed that the appeal may be dismissed. 7. The points that arise for our determination in view of the above arguments are as follows :- (i) Whether the confiscation of 9,60,000 Nos. of biris and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on had disowned his statement. He was not treated as a hostile witness and also not cross-examined. Even the Adjudicating Authority did not rely on his statement. The relevant portion of the order of the Adjudicating Officer reads as follows :- "......It appears that the case was evidently based on incriminating documents recovered from the premises of the said firm including other units mentioned in the Annexures to the S.C. Notice dated 10-9-1981. The alleged statements of Syed Taj Mohammed were only indicative of the fraudulent activities of the said firm. So without relying much on those disputed statements I am inclined to base my findings on the incriminating documents recovered and seized in connection with the instant case." It is thus seen that the Adjudication Order proceeded on the basis of the incriminating documents. Now it is seen from Annexures 1.1. to 1.3 to the Show Cause Notice, which were mentioned above by us, that the total quantity of biris comes to 16,48,75,725 Nos. If 9,60,000 Nos. of biris are confiscated, the balance will come to 16,39,15,725 Nos. The appellants' contention now is that out of this quantity 10,27,27,794 biris relate to the period prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the evidence of Taj Mohammed cannot be relied upon and if the same is taken away, the records also cannot be looked into. But we may point out that even if the evidence of Taj Mohammed is brushed aside (and which is also not relied upon by the Adjudicating Authority), still the records which are recovered from the appellants can always be looked into. The mere fact that Mir Syed Ali's statement was not taken by the Departmental Officers is no reason to discard the above documents. Admittedly, Mir Syed Ali was an old person who is no more. It is not known as to whether the Departmental Officers failed to take his statement due to his old age. But the appellants are contending that he was in a position to give his statement. Whatever it may be, the mere fact that his statement was not taken, is not sufficient to ignore the records seized in this case. The case of the appellants is that whatever biris were sent to Nowgaon, Assam were mostly damaged and the records maintained in Nowgaon cannot be relied upon as records showing clandestine removal. The appellants' only plea was that most of those biris were damaged ones. If that were so, some biris would not be damaged ones. Even ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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