9911796707
TMI Blog2018 (8) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... nts recorded at different locations from different persons on different dates giving the same conclusion is amply proof that the statements are reliable documents. The learned Commissioner (A) has either remanded back the cases with a direction that the quantification of evasion on the basis of evidence available on record is required to be restricted with reference to the actual evidence available and cannot be extended to those transactions which relate to other dealers/customers where no evidence is available - the Commissioner (A) has taken a fairly judicious view of the case of the appellant and has given directions to restrict the duty liability to the extent of documents, statements which corroborate the actual transactions whereas the show-cause notices were issued with a generalized principle extrapolating one instance to the entire set of clearances by the appellants - the question is answered in affirmative. Reliability of statements - Whether disowning of statements during the cross- examination is a valid ground for not taking the statements into consideration? - Held that:- In this case, the cross examination was not denied and the case was not only based on the state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s used to be circulated or informed to the customers separately; the value/prices shown in the invoices were only 50% of the actual price and amounts over and above the bill were normally paid by the customers in cash to the representative of the firms. The Department, inter alia, relied upon the following: (i) E-mail message dated 12.11.2002 supposed to be sent by One Shri Manilal P. Suther, Partner of M/s. Vishnu Sales to M/s. A. K. Group firms which reads as under: "Now keep the above mentioned material ready, I am sending you the total amount mentioned above. As talked to you over phone I want at least 50% to 65% bill and now give me the details on which name I should send the DD." (ii) A handwritten slip recovered from the premises of M/s. Plywood Associates, Coimbatore in respect of the sale of plywood to M/s. Ganesh Plywood and Hardware, Erode under the Bill No.1630 dated 30.3.2004 wherein it appeared that the actual price was ₹ 22,132/- whereas invoice was showing only ₹ 17,125/-. (iii) A notebook seized from M/s. Plywood Associates, Coimbatore on 28.4.2004 detailed at page 39 and 44 shows actual amount and invoice amount collected in respect of Invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN 47/05-06 OIO No.10/2007 dt.28.2.007 OIA No.99/2009 dt.18.3.2009 6 E/595/2009 A.K. Panels Rs.31,42,477/- Rs.31,42,477/- u/s 11AC Rs.12,00,000/- u/R 25 Rs.3,88,500/- Rs.3,88,5 00/- 7 E/596/2009 Mr. Niyaz Ahmed Rs.6,00,000/- Rs.25,00 0/- 8 E/597/2009 Mr. Naushad Ahmed Rs.6,00,000/- Rs.25,00 0/- SCN 46/05-06 OIO No.11/2007 dt.28.02.2007 OIA No.100/2009 dt.18.3.2009 2.2 In all, there are eight appeals, and as the subject matter in all the appeals is same, there are taken up together for discussion and decision. 3. The learned counsel for the appellants submitted that the department alleged undervaluation to the extent of 40% in a very generalized manner. The statements recorded were retracted by the concerned persons during cross examination. Cross-examination has the same analogy of examination of a Court of Law. Following the principles of justice, the adjudicating authority and the appellate authority should have noted that the statements having been retracted have no relevance and they cannot be relied upon. The Department relied upon one e-mail from M/s. Vishnu Sales Corporation situated in Vadodara. However, as there are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the principles laid down by various decisions cited above, I hold that Department's quantification of evasion on the basis of evidence available on record is required to be restricted with reference to actual evidence available and cannot be extended to those transactions which relates to other dealers/customers where no evidence is available." 5. Heard both sides and perused the records. The brief issues to be decided in these cases are: (i) Whether the allegations leveled by the department on the basis of few chits/slips/documents recovered during searches can be sustained. (ii) Whether disowning of statements during the cross- examination is a valid ground for not taking the statements into consideration. (iii) Whether penalty can be leveled separately on the partners of the firms invariably. 5.1 In the instant cases, the Department has made certain allegations against the appellants on the conclusion of the investigation conducted by the officers of DGCEI. The department has alleged undervaluation of excisable goods manufactured by the appellants to the extent of 40% i.e., it was alleged that the actual price was suppressed and only 60% of the price was declared on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) has remanded the case back to the original adjudicating authority in respect of M/s. A.K. Wood Industries (E/491/2007) and M/s. Nafeesa Frameworks (E/493/2007) with similar directions and the cases are reported to be pending before the adjudicating authority. 5.2 Therefore, we find that the Commissioner (A) has taken a fairly judicious view of the case of the appellant and has given directions to restrict the duty liability to the extent of documents, statements which corroborate the actual transactions whereas the show-cause notices were issued with a generalized principle extrapolating one instance to the entire set of clearances by the appellants. Therefore, we find that the question (i) as framed above is answered in the affirmative by the forgoing discussions. As observed by the original adjudicating authority as well as the learned Commissioner (A) looking into the general undervaluation in the product it would be very difficult for any investigating agency to adduce evidence for each and every transaction. We find that it is sufficient if logical cause is shown and is corroborated by evidence. We find that in the instant case, the same has been done by the investigations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the transactions entered into by the appellants. That having been done, we have no doubt that the issue answers the first question raised above in the affirmative. 6. Coming to the issue of reliability of statements, the learned counsel for the appellant submitted that the witnesses have retracted the statements during the cross-examination and in some cases, the adjudicating authority has posed some general questions to the witnesses. The retractions stand valid. The same cannot be relied upon evidence. The appellant relying on the ratio of the G-Tech Industries (supra) has stated that it is not open to any adjudicating authority to straightaway rely on the statements recorded during the investigation/enquiry before the Gazetted Central Excise Officer unless and until he can legitimately invoke Clause (a) of Section 9D(1). We find that in this case, the cross examination was not denied and the case was not only based on the statements of the persons it was corroborated by the evidence wherever it was available. As observed by the adjudicating authority, nothing has been brought on record by the appellants that the statements have been recorded under duress/coercion ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
