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2013 (1) TMI 637

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..... ty imposed on each of them. - E/582-584/2010 - S-698-700/KOL/2012 - Dated:- 3-7-2012 - Shri S.K. Gaule, Dr. D.M. Misra, JJ. REPRESENTED BY : Shri B.N. Chattopadhyay, Consultant, for the Appellant. Shri S. Misra, Addl. Commissioner (AR), for the Respondent. [Order per : D.M. Misra, Member (J)]. - These applications are filed seeking waiver of pre-deposit of duty of Rs. 2,41,23,188/- and equivalent amount of penalty imposed under Section 11AC of C.E.A., 1944 on applicant/appellant M/s. Amba Rerolling Mills Pvt. Ltd., personal penalty of Rs. 1.00 crore each on Shri Bijay Kumar Sethi, Director and on Shri Jaswant Singh, Director of M/s. Amba Rerolling Mills Pvt. Ltd. 2. Briefly stated facts of the case are that M/s. Amba Rerolling (in short, M/s. ARMPL) are engaged in the manufacture of M.S. Bars and Rods falling under Chapter 72 of CETA for their Re-rolling Mill from inputs mainly M.S. Ingots. On the basis of intelligence, the officers of DGCEI raided on the factory and various premises of ARMPL and seized records including pocket diaries maintained by the Directors. Consequently, statements of the Directors were recorded who admitted to the act of clandestine ma .....

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..... w cause notice which is around 50 pages, opportunity was provided to the Applicant to file their reply to the allegation made and all the relied upon documents were enclosed with the Notice. It is mentioned at paragraph 12 of the SCN that the applicants are directed to show cause within 30 days on receipt of this notice and also it is mentioned at para 14 that documents relied upon for the purposes of charges made in the SCN, including the one enclosed as per annexures be inspected by the noticee and non-relied upon documents may be collected from the office of DGCEI Regional unit, Jamshedpur. 5. The ld. A.R. brought to our notice from the records that the applicants/appellants never communicated nor responded to the said notice till 12th March, 2010. They responded to the Notice only after the Department through its letter, dated 3rd March, 2010 fixed the personal hearing in the matter on 12-3-2010. Consequent to their request on 12-3-2010, the hearing was adjourned to 22-3-2010. The ld. A.R. further submitted that in their letter dated 12th March, 2010 the applicant M/s. ARMPL had acknowledged receipt of copies of seized records and documents and did not furnish the reason of .....

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..... t Shri B.K.Sethi agreed that the entries in the diaries contained all details relating to receipt, disposal, Sales, purchase payment partywise and acceded to its contents. Accepting the clandestine removals recorded in the said diary, he has issued four cheques amounting to Rs. 15.00 Lakhs and agreed to make payment of balance amount of duty over a period of time. Similarly the diaries recovered from the possession of Shri Rabi Bhatia, son of Shri Jaswant Singh, another Director also reflected the details of, purchase of raw materials, manufacture and sale of finished goods and payment for purchases and receipt of sale proceeds. On the basis of entries in these diaries, the DGCEI investigated the matter and SCN was issued for recovery of duty evaded on the manufacture and clearance of M.S. Rods and Bars clandestinely during the period October, 2006 to 9th April, 2007. He has submitted that there were enough evidences, based on which the ld. Commissioner had to come to the finding that the Applicants had indulged in clandestine manufacture and removal of goods from their factory. 8. Heard both sides and perused the records. We find that the case against the Applicants/Appellants i .....

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..... r adjournment by the Adjudicating Authority who gave three opportunities of hearing on different dates i.e. on 12th, 22nd and 29th of March, 2010. As per the adjudication procedure laid down at Section 33A of the Central Excise Act, 1944. 11. We find that the judgments cited by the ld. Consultant are not applicable to the instant case inasmuch as in Godfrey Phillips case, the Dy. Commissioner has suo motu revised the annual production capacity and monthly duty liability without hearing the petitioner in the case, in Eveready Industries case, the Commissioner of Central Excise (Appeal), Kolkata had directed 25% pre-deposit of the amount of duty confirmed and penalty without hearing the applicant in that case; in Webel SL Energy s case the Commissioner of Central Excise passed an order directing 25% of the total amount of duty confirmed and penalty imposed as pre-deposit without hearing the appellant; in Alfrey Bird Co. (I) Pvt. Ltd., the petitioner filed a writ petition before the Madras High Court that the classification was changed without affording an opportunity to the petitioner in that case; in Grasim Industries case, the Dy. Commr. of Customs under a special drive final .....

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..... has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. 33. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth. 34. In Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271: (AIR 1991 SC 1346), this Court observed that in such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions whether discretionary or obligatory according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done .....

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..... roceeding. Prima facie at this stage we do not find merit in these retractions which would be considered at the time of disposal of the appeal. On the basis of evidences on record, particularly the diaries and the statements and other evidences as discussed and detail findings recorded by the adjudicating authority, we find there is a prima facie case against the applicants/appellants that they have indulged in unaccounted manufacture and clearance of excisable goods without payment of duty from their registered factory premises. It is not a case of no evidence, but it is the case of appreciation of evidences collected by the Department from the possession of applicants/appellants and assessed by the adjudicating authority in arriving at the finding of clandestine manufacture and removal of goods without payment of duty. We also agree with the ld. A.R. that it is the basic principle of Rule of evidence that facts admitted need not be proved. Since at the initial stage of investigation when the Director s statements were recorded to ascertain the correctness of entries made in the diary, the Directors admitted the said fact of manufacture and clearances of excisable goods without pa .....

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