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2014 (9) TMI 767 - CESTAT MUMBAIClandestine removal - confession statements - corroborative evidences - Confiscation of excisable goods and currency - Redemption fine - imposition of fine and penalties - Held that:- In one type of sale he used to prepare sales invoices and delivery challans for sale of goods at the factory gate to the genuine customers and the said sales was duly accounted for in the records. In the second type of sales, they were selling the goods at factory gate to various customers on payment of cash without any sales invoice and bills. In the third type of sales wherever they received orders for supply of goods over phone, the goods were lifted from the factory for delivery under delivery challans made in the name of genuine customers but the goods were sold to needy customers without any sales bills or delivery challans and against payment of hard cash. Thus the modus operandi adopted by the appellant firm stood clearly admitted in the aforesaid statement of Shri Balkrishna Agarwal, who was the Managing Partner of the appellant firm during the relevant period. There is no retraction of the confessional statement by Shri Balkrishna Agarwal. As regards the lack of corroborative evidence, it is a settled position of law that “admitted facts need not be proved” as held by the Hon’ble High Court of Madras in the case of Govindasamy Ragupathy - [1997 (6) TMI 356 - MADRAS HIGH COURT]. In a recent decision in the case of Telestar Travels Pvt. Ltd. - [2013 (2) TMI 396 - SUPREME COURT], the Hon’ble Apex Court held that reliance can be placed on statement if they are based on consideration of relevant facts and circumstances and found to be voluntary. Similarly in the case of CCE, Mumbai v. Kalvert Foods India Pvt. Ltd. - [2011 (8) TMI 24 - SUPREME COURT OF INDIA] the Hon’ble Apex Court held that if the statements of the concerned persons are out of their volition and there is no allegation of threat, force, coercion, duress or pressure, such statements can be accepted as a valid piece of evidence. As regards the confiscation of the currency, the same is permissible, in view of the provisions of Section 121 of the Customs Act read with Section 12 of the Central Excise Act, 1944, as the currency was the sale proceeds of the goods clandestinely removed without payment of excise duty - Inasmuch as Shri Balkrishna Agarwal has passed away, the proceedings against him abates and therefore, the penalties imposed on Shri Balkrishna Agarwal is set aside - Decided partly in favour of assessee.
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