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TMI Blog2013 (9) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... cord in the case was sufficient to establish the preponderance of probabilities - Keeping in view the principles regarding the standard of evidence required for proving the allegation of duty evasion in the departmental adjudication proceedings - The standard of proof required in the Departmental proceedings under the provisions of the Customs Act, 1962 or Central Excise Act, 1944 or of the Rules made thereunder, for confiscation of goods, confirmation of demand for duty evaded, and imposition of penalty was the preponderance of probability - For establishing to be preponderance of probability, the adjudicating authority or the Tribunal had to evaluate the evidence of both the sides and decide what was most probable - Decided against assessee. - E/4085/2004-SM(BR) - 597/2011-SM(BR)(PB) - Dated:- 8-9-2011 - Shri Rakesh Kumar, J. Shri Bipin Garg, Advocate, for the Appellant. Shri Anil Khanna, SDR, for the Respondent. ORDER The facts giving rise to this appeal are, in brief, as under :- 1.1 The appellant are engaged in the manufacture of branded chewing tobacco chargeable to central excise duty under sub-heading No. 2404.40 of the Central Excise Tariff. Smt. Chamel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Central Excise Act along with interest on it under Section 11AB; and (c) while the penalty of Rs. 8,50,414/- was imposed under Section 11AC on the appellant firm, no penalty was imposed on Smt. Chamela Devi, Proprietor of the appellant firm. 1.3 The appellant firm filed the appeal before the Commissioner of Central Excise (Appeals), Lucknow against the Additional Commissioner s order, who under order dated 27-2-2004 dismissed the appeal. Against this order of CCE (Appeals), this appeal has been filed. 2. Heard both the sides. 2.1 Shri Bipin Garg, Advocate, ld. Counsel for the appellant pleaded that the duty demand of Rs. 3,22,373/- is based on the bill book, that the bill book is actually an order book for booking the orders from the customers and the quantities and values mentioned therein are the quantities and the values of the branded chewing tobacco for which the orders had been placed, that what the Department calls the bills are actually order forms, that merely on the basis that the orders contained in the bill book , it cannot be presumed that the goods covered by the such order forms had actually been sold to the parties mentioned therein, specially when no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order by reiterating the findings of the Commissioner (Appeals) and emphasised that Shri Lalji Tiwari, Proprietor of the appellant firm and also the Authorised Signatory of the company, had been specifically asked about the documents recovered from the factory and he, in his statement dated 14-7-1999 has admitted that these documents pertained to clearances of branded chewing tobacco, that subsequently, Smt. Chamela Devi in her statement dated 6-9-1999 had expressed her full agreement with the statement dated 14-7-1999 of her husband, that none of these statements recorded under Section 14 of the Central Excise Act, 1944 by a Gazetted Officer had been retracted, that the plea of the appellant that the bill book is actually an order book containing the orders, is incorrect, as on number of bills, the word order is cut out and a number of bills also bear the signatures of the customers. 3. I have carefully considered the submissions from both the sides and perused the records. Sofar as the allegation of non-accountal of 49.960 kgs. of branded chewing tobacco under the provisions of Section 9(2) 173Q of the Central Excise Rules is concerned, since there is no dispute th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is a case of clandestine removal, penalty under Section 11AC and interest on duty under Section 11AB would be attracted. I do not find any basis for the appellant s plea that in view of the substitution of Section 11AB by a new Section 11AB w.e.f. 11-5-2001, no interest would be chargeable in view of the provisions of sub-section (2) of the new Section 11AB, according to which the provision of this Section are not applicable to clearances made during the period prior to 11-5-2001, as the period of dispute in this case is prior to 11-5-2001, when the interest on short paid, short levied or erroneously refunded duty was linked to the short payment, short levy or erroneous refund having taken place on account of fraud, wilful mis-statement, suppression of facts, etc. on the part of the assessee and since, these elements are present in this case, the interest has been correctly demanded by the original adjudicating authority in Adjudication Order dated 31-10-2000. W.e.f. 1-5-2001, the scope of Section 11AB had been expanded to include all cases of short levy, short payment or erroneously refund, irrespective of whether the short levy, short payment and erroneous refund had taken plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) While the burden of proving that the goods to which the provisions of Section 178A of Sea Customs Act, 1878 (corresponding to Section 123 of the Customs Act, 1962) does not apply, is on the Department, the Department is not required to prove its case with mathematical precision to a demonstrable degree and all that is required is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact is issue and the legal proof is not necessarily the perfect proof, but nothing more than a prudent man s estimate as to the probabilities of the case (para 30 of the judgment). (2) Since it is exceeding difficult, if not impossible, for the prosecution to prove the facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. On the principle underlying Section 106 of the Evidence Act, the burden to establish those facts is cast on the person concerned and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department, wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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