Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2022 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (8) TMI 494 - AT - Central ExciseClandestine Removal - shortages of finished goods vis-à-vis stock recorded in the Daily Stock Account - retraction of statements - prescriptions of Section 9D of the Act, not adhered - levy of personal penalties - HELD THAT:- The Commissioner had erred by holding that the retractions were belated, did not inspire confidence of bona fides and that the claim of retraction was after-thought under legal advice. The Commissioner had also erred by relying upon a host of judicial decisions without discussing their individual factual situations, as is apparent from a bare perusal of paragraph no. 8.4 at pages 15-17 of the impugned order, and the said findings in this behalf are liable to be held as untenable. On a query from this Bench, the Ld.Advocate submitted that necessary averments as to the retraction of the aforesaid purported statements had been made in the replies to the show cause notices and other communications of the appellants/noticees - the adjudicating authority would not have reached a different conclusion in this regard, had the retractions been produced before him by the co-appellants/ deponents concerned. In any case, the inherent contradictions and discrepancies in the statements given by each co-appellant/ noticee, as elaborated in page nos. 11-13 of the Company’s Written Submissions, militate against the evidentiary value attached to the purported incriminating statements, even if the original statements were to be held as admissible. Failure on part of the adjudicating authority to adhere to prescriptions of Section 9D of the Act - HELD THAT:- Section 9D(1) of the Act sets out the circumstances in which a statement made and signed before a Gazetted Central Excise officer shall be relevant for the purpose of proving the truth of the facts contained therein. If these circumstances are absent, the truth of the facts contained in the statement made during the course of enquiry/investigations before a Gazetted Central Excise officer, has to be proved by evidence other than the statement itself - the adjudicating authority could not have straightaway relied on the purported incriminating statements of Sri Sanjib Mahapatra, Sri Prahraj Swain and Sri Sanjay Gadodia aforesaid (assuming that the subsequent retractions were invalid) without legitimately invoking Section 9D(1)(a) of the Act. All the said purported statements, thus, have to be eschewed from consideration. Levy of personal penalties - HELD THAT:- As the principal demands against the Company have failed, the imposition of personal penalties against Sri Sanjay Gadodia, Sri Sanjib Mahapatra and Sri Prahraj Swain aforesaid cannot be sustained. Appeal allowed - decided in favor of appellant.
|