TMI Blog2005 (3) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... irector Shri Gopal Gupta. Shri Subash Agarwal, Proprietor of M/s. SNT has also stated that they received processed fabrics from M/s. GSML with bills and without bills. In respect of goods purchased without bills the payments are made in cash. We are very sure that humanly it would be impossible to establish all the links of clandestine activity without any break. In this case, the statements or the admissions are supported by the recovery of non-duty paid goods as well as incriminating documents. A modus operandi of paying only one tenth of the duty actually payable has been graphically described by Shri Gopal Gupta and Shri Bhavani Kishore in their statements. Hence, in our view, the adjudicating authority has rightly confirmed the demand based on the quantity of 11 lakh Lmts. of MMF cleared without payment of duty on the basis of admission by Shri Gopal Gupta, corroborated by the incriminating documents, unaccounted goods and the statements of all others. When a fact is admitted it doesn't need further corroboration. We have no reason to believe that the statements have been taken under duress. We also hold that the retraction made after two months is an after thought. The de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntant, M/s. GSM (iii) Shri Ashok Kumar Agarwal, Director, M/s. GSML (iv) Shri Kamal Kumar Agarwal, Proprietor of M/s. HTD(v) Shri Subhash Agarwal, Proprietor of M/s. SNT (vi) Shri Nirmal Kumar Gupta, Proprietor of M/s. KT (vii) Shri Mamillalalli Sattaiah, Driver of the Vehicle (viii) Shri Gouri Shanker Gupta, brother of Gopal Gupta 2. On the basis of the above statements as well as the various records/incriminating documents recovered during the course of investigation, show cause notices were issued to all concerned. The Adjudicating Authority, after following the principles of Natural Justice, dealt with the following broad issues : (i) Detection of shortages and excesses of MMF during the short verification in the factory of GSML on 15-5-1997. (ii) Seizure of unaccounted MMF in transit. (iii) Seizure of unaccounted MMF in the premises of dealers, viz : (a) M/s. SNT (b) M/s. KT (c) M/s. HTD (iv) Clearances of excess quantities of MMF by manipulation of the entries in the invoice. 3. The Adjudicating Authority, after considering the various submissions made by the Noticees, came to the conclusion that during the period from January 1997 to May 1997, M/s. GSML cleared 11 lakhs Lmtr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. GSML. These slips, on which the entire case has been built, do not even bear the signature of any of the employees of the dealers or the appellants. The kutcha slips said to have been recovered from Nirmal Kumar's residence have actually not been recovered from the said dealer's house. The House No. 33/99, Officer's colony, RK Puram, Secunderabad is not the residence of Nirmal Kumar. (vii) There is no documentary evidence to show that the quantity seized in the premises of the dealers were in fact received from M/s. GSML without payment of duty. (viii) The entire quantity mentioned in the said kutcha slips recovered from the said dealers has been attributed to goods manufactured by M/s. GSML without any corroborative evidence to show that - · The said grey fabrics were transported from the said dealers to M/s. GSML; · The said grey fabrics were received by M/s. GSML from the said dealers; · FSM undertook processing of such fabrics alleged to have been sent by the said dealers; · The finished fabrics were sent back by M/s. GSML to the said dealers; · M/s. GSML received the said processing charges; · The said dealers paid M/s. GSML processing charges; · Lorry receipts/Trip sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been satisfied, penalties on the Noticees under Rule 209A is not sustainable in view of the following decision. - Killick Nixon Ltd. v. CCE. Aurangabad - 1998 (97) E.L.T. 436 (T) - Standard Pencils Pvt. Ltd. v. CCE, Madras - 1996 (86) E.L.T. 245 (T) - Tolaram Electronics and Others v. CCE - 1999 (108) E.L.T. 277 (Tri.) = 1999 (33) RLT 558 (T) - Ashok India Engineering Works v. CCE - 1998 (98) E.L.T. 659 (T) (xiv) The handwriting of the person who prepared the kutcha bills, has not been compared with the admitted handwriting of any of the employees of the said dealers. Further, such handwriting has not been referred to the govt. examiner of Questioned documents or a handwriting expert to identify the author of such kutcha slips. (xv) The statements of transport operators/drivers have not been recorded to show that the grey fabrics were transported to M/s. GSML. Similarly there is no evidence to show that the finished fabrics said to have been processed out of the grey fabrics received from the dealers, have been transported from the factory of M/s. GSML, to the premises of the said dealers. Neither the Lorry Receipts nor the Trip sheets have been recovered from the transport ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them had written the same, (vii) by adducing other unimpeachable circumstantial evidence. The connection of the accused with the secret books of account could also have been established by producing some of the customers whose names are admittedly to he found in the secret books of account to testify that the deals evidenced by the entries were transacted by them with the establishment of the accused [AIR 1971 SC 2162, Disting. 1973 Ker LT 731. Affirmed]." 6. The learned SDR submitted that the adjudicating authority has elaborately dealt with all the points raised by the learned advocate in his adjudication order. He also referred to about the excess consumption of electricity during certain period but the production shown in the RG-1 register was quite low. This indicates suppression of production and clandestine removal. Further he said that there are scientific methods of taking the stock and it is not impossible to do the stock taking of GSM in 6½ hours. He urged that there is sufficient evidence to indicate suppression of production and clandestine removal. Moreover, the statements were retracted after two months. Hence, retraction has no value in this case. He pleaded that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta when questioned as to how he could clear more quantities of processed fabrics without being noticed during the course transit checks by the Officers gives the following answer : "Initially when the processed fabrics are cleared from the factory we issue Central Excise invoice for the total quantity. However after the consignment is delivered at the destination we get back the duplicate copy of the invoice and alter the actual quantity cleared, value of the goods, duty payable etc., to ⅟10th of the actual quantity cleared on all the copies of the invoice by placing a decimal before the last digit and adding a zero to the last digit. To enable the adjustment we do not write the duty payable in words." 9. A significant thing to be noted is when the vehicle was intercepted and the invoice was perused, duty particulars were not written in words. This factual position corroborates Shri Gopal Gupta's statement. Therefore to hold that Shri Gopal Gupta's statement is not at all corroborated is not correct. The entire statement of Shri Gopal Gupta is very revealing. On the point of manipulation of invoice, Shri Bhavani Kishore, Accountant of M/s. GSML, has elaborated in great de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... links of clandestine activity without any break. In this case, the statements or the admissions are supported by the recovery of non-duty paid goods as well as incriminating documents. A modus operandi of paying only one tenth of the duty actually payable has been graphically described by Shri Gopal Gupta and Shri Bhavani Kishore in their statements. Hence, in our view, the adjudicating authority has rightly confirmed the demand based on the quantity of 11 lakh Lmts. of MMF cleared without payment of duty on the basis of admission by Shri Gopal Gupta, corroborated by the incriminating documents, unaccounted goods and the statements of all others. When a fact is admitted it doesn't need further corroboration. We have no reason to believe that the statements have been taken under duress. We also hold that the retraction made after two months is an after thought. The denial of cross-examination of the two persons Shri Bhavani Kishore and Shri Gouri Shanker Gupta does not vitiate the proceedings. These people have not retracted their statements also. As regards Shri Bhavani Kishore, it is worth quoting the finding of the Adjudicating Authority in para 96 of his order: "Shri Bhavani Kis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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