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TMI Blog1997 (12) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000/- and imposition of penalty of Rs. 5,000/- on M/s. Jagdish Biri Company and Rs. 5,000/- each on M/s. Sidhardh Biri Works and M/s. Manish Agencies in addition to the confiscation of Matador Vehicle with an option to redeem the same on payment of a fine of Rs. 25,000/- and imposition of penalty of Rs. 1,000/- on Shri Neeraj Sahu and Shri Mansukh. 3. The facts of the case, briefly stated, are that the Central Excise Officers intercepted a Matador Vehicle on 27-11-1994 at Hasari in Jhansi District. The said Matador was found to be loaded with 12,65,000/- Biris, comprising 40 bags containing 10,40,000 Hunter Chap Biris and 3 bags containing 2,25,000 Special Hunter Chap Biris. On demand, Shri Mansukh, the Driver of the Matador, produced a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng them to explain as to why the seized goods should not be confiscated; why duty should not be demanded and why penalty should not be imposed. The Appellants in their reply stated that the statements of Shri Mansukh and Shri Ramesh Chandra were obtained under duress and were retracted by filing sworn-in affidavits. It was argued by the Appellants that the seized 12,65,000 Biris comprise of two lots; that one lot was lifted from M/s. Manish Agencies under proper challan and the other lot of 2,25,000 biris lifted from the premises of M/s. Mahendra and Dharmendra; that the challan in respect of 2,25,000 biris lifted from the premises of Mahendra and Dharmendra was given to the Driver and that the Driver left that challan back by mistake; that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the number of biris was not correctly done, that it was only an estimation. He submitted that the demand for duty cannot be raised on the basis of estimated number. He also submitted that the goods were inside the factory and, therefore, their seizure and confiscation was not warranted, more so when the total number of biris involved was disputed. The ld. Consultant referred to a number of decisions of the Tribunal on the question of evidenciary value of retracted statements and also on the question of seizure and confiscation of the goods found in the factory. The ld. Consultant submitted that since the Department has not been able to bring on record any evidence and since the two statements were not true and voluntary and were retracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in excess when the stock was verified. The ld. DR submitted that all these facts are to be examined in its entirity and when done so, it will be clear that the goods were being clandestinely removed as there was no bag number and name of the manufacturer on the containers. He, therefore, prayed that the impugned order may be upheld. 8. Heard the submissions of both sides. On careful consideration of the submissions made, the case law cited and relied upon as also the evidence placed on record, I find that the statement of Shri Mansukh, Driver of the Matador Vehicle and Shri Ramesh Chandra, Packer of M/s. Jagdish Biri Company was recorded. Now the question is whether this statement was recorded under duress and was involuntary. I find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rought on record to show that different goods were cleared under Invoice No. 14, dated 22-11-1994. The mix-up is possible inasmuch as the premises of M/s. Mahendra Dharmendra are located in the same building. Therefore, in respect of 10,40,000 Numbers of Biris contained in 40 bags seized from the Matador, I gave the benefit of doubt to the Appellants. 10. Insofar as the Biris numbering 2,25,000 are concerned, I find that there was no Challan, Bill or Invoice produced by the Driver and the story of the Driver that he had left it back in his Pant Pocket is not convincing and, therefore, I hold that 2,25,000 Biris were being removed clandestinely. In this view of the matter, I uphold the confiscation of 2,25,000 Nos. of Biris. 11. Insofar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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