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TMI Blog2011 (8) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... India and accepted the plea advanced by him that the entries made in the diaries related to the sale of acid slurry on commission basis, on behalf of M/s. Shah Brock India - Decided in favor of revenue - Central Excise Reference No. 3 of 2005 - - - Dated:- 10-8-2011 - Sunil Ambwani, Pankaj Mithal, JJ. S.P. Kesarwani for the Appellant A. Nigam for the Respondent JUDGEMENT 1. We have heard Sri S.P. Kesarwani, learned counsel for the Central Excise Department. 2. On an application filed by the Revenue, numbered as C.E.R.A. No. 13 of 2003, the Court called the following questions of law, involved in the Tribunal's final order dated 11.9.2002 to be decided by it:- (i) Whether the Tribunal's order can be held as proper and legal where the substantial documentary evidence relied upon by the department to prove the allegations viz., recovery of parallel/duplicate invoices, accounts of unaccounted sale and its admission by the partner of the firm, remain uncontroverted ? (ii) Whether in the case of clandestine removal admitted by the partner and supported by corroborative evidences, the Deptt. requires to prove guilt beyond doubt? 3. The Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.6,50,342/-. He also imposed penalty of equal amount that of the duty, and penalty of Rs.25,000/- on Shri Mukul N. Shah. 12. The Tribunal in its short and sketchy order, without referring to the detailed findings recorded by the appellate authority, in which entire statement admitting clandestine removal of goods by Rakesh Kumar Pandey - Manager of the firm and Shri Mukul N. Shah - partner of the firm, were collected and their explanations were discussed, set aside the duty as well as the penalty on the ground that the entries made in the diaries seized from the residence of Shri Mukul N. Shah were vague, and that description of the goods of various types produced, or cleared was not given therein. The names of the parties, to whom the goods were cleared, was not mentioned, and thus it could not be inferred that these relate to the disputed goods i.e. acid slurry. 13. The Tribunal further found that there was no evidence on record, to suggest that any discrepancy regarding production, and clearance of goods, was found in a statutory records, maintained by the firm. There was no evidence to prove the receipt of extra raw material and extra consumption of electricity for pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that the Department's case is based, primarily on the private diaries recovered from the residential premises of Shri Mukul N. Shah, one of the partners of the party. In their defence, the party have strongly contested and challenged the authenticity of such diaries as well as contents inscribed therein, stating that since no where in such diaries there is mention of name of his company i.e. M/s. Shabroc Chemicals, it cannot be concluded that such diaries belong to their company. It is, therefore, necessary first of all to examine the relevance, veracity and acceptability of such diaries. It is seen that the fact of recovery of impugned diaries is not disputed. This fact has not been denied by the party. Rather, the main working partner of the party, Shri Mukul Shah has categorically admitted the recovery of such diaries from his residence in his statement dated 19.9.97, recorded before the Assistant Commissioner under Section 14 of the Central Excise Act, 1944 and has stated that the accounts regarding despatch of goods and receipt of payments mentioned in these diaries have been maintained by him in his own handwriting and most of these clearances have been made by use of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and without accounting for the same in their statutory records." 18. In para 7 of the order, the Commissioner quoted, entries in the diary having inscription of 'Pan Parag' in Hindi, on pages - 2.6.1992 and 22.7.1992, and other entries in a diary titled 'Commercial Diary' dated 1.1.1994, 3.1.1994, 4.1.1994, 6.1.1994, 10.1.1994, 14.6.1994, 4.67.1994, 7.7.1994, 9.7.1994, 15.7.1994, 5.10.1994 and private diary titled 'Mukul - Sant Tiger Note Book', on page 48, dated 25.8.95, 6.9.95, 7.9.95 and 11.9.95. The Commissioner thereafter discussed the entries in para 8 as follows:- "08. These are the few entries from private diaries recovered from the residence of Shri Mukul N Shah, working partner of M/s. Shabroc chemicals which have been quoted by me only by way of illustration for proper appreciation of issue involved and questions raised by the party. On critical analysis of above entries and entries available in such private diaries I find that in respect of most of such entries, the commodity despatched is specified. Where no commodity is specified either manner of transport or rate at which such item is supplied is mentioned. Because of availability of these details against eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essure or coercion. There is no indication whatosever in his statements to suggest that his statements were extracted from him under duress. Moreover, the party have not been able to adduce any evidence to substantiate their contention. If there was any kind of coercion, Shri Shah was free to report this fact to higher authorities of the Department. He was also free to retract his statements at the earliest opportunity. But since the party did not do so earlier, their retraction at this stage i.e. nearly after 4 years, is of no avail. It may be that enquiries and recording of statement of Shri Mukul Shah might have been conducted for long hours but this process can neither be treated as detention nor his statements recorded during the normal course of investigation can be treated as unreliable as pleaded by the party. If Shri Shah felt that he was illegally detained by the Central Excise Officers nobody prevented him from lodging FIR with the police against such officers. Since the party has not produced any such evidence, their plea at this juncture is nothing but an afterthought. In this regard I place reliance on the following judgments." 19. In para 9, the Commissioner Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "presumption of innocence is, no doubt, presumptio juris: but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property," though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. xxx xxx xxx These fundamental principles, shorn of technicalities, as we have discussed earlier, apply only in a broad and pragmatic way to proceedings under Section 167(8) of the Act. The broad effect of the application of the basic principle underlying Section 106 .. Evidence Act to cases under Section 167(8) of the Act, is that the Department would be deemed to have discharged its burden if it adduces only so much evidence, circumstantial or direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 960 SC 1000, the Supreme Court has held in para 11 that:- "11. In the present case, the burden of proof need not detain us for another reason. It has been proved that the appellant and his predecessors in the title which he claims, had admitted on numerous occasions that the public had a right to worship the deity, and that the properties were held as Devasthan inams. To the same effect are the records of the revenue authorities, where these grants have been described as Devasthan, except in a few cases, to which reference will be made subsequently. In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. We shall now examine these admissions in brief and the extent to which they went and the number of times they were repeated." 26. In the present case, seizure of documents, and thereafter corroboration of these documents from the statement of Shri R.K. Pandey (Manager of the firm) and Shri Mukul N. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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