Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2013 (8) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (8) TMI 649 - HC - Central ExciseProduction capacity based duty - Power to Review the Order - Whether after the Commissioner had determined the annual capacity of production the Commissioner could review his order when he was informed that fake certificates were issued and as such the earlier determination was based on false and fabricated invoice/certificates regarding the annual capacity of production - Held that:- The question was answered in negative - Assesse was available and has also filed his reply to the notice issued by the Excise Commissioner in which he had stated that his statement was recorded under duress thus his statement could not have been relied without his cross examination - apart from the statement there was no material before the Excise Commissioner to hold that the respondent has produced fake invoices - Statement was not recorded in the proceeding as such it could not be read as an evidence and there was no material for exercising the powers under Proviso to Section 11-A of the Act. Material to Prove the Fraud - Whether there was any material before the Excise Commissioner to hold that earlier order was obtained by committing fraud - Held that:- Statement had not been recorded as a witness in the proceeding as such there was no admissible evidence on record to hold that fraud has been committed by the respondent - The Excise Commissioner had illegally treated the statement as an admission - According to the Excise Commissioner as Excise Officer was not a police officer as such the voluntary statement made before him was admissible and Section 25 of the Evidence Act will not apply. CCE Versus Versus M/s Bajaj Auto Ltd. [2010 (11) TMI 7 - Supreme Court India] - Initial burden lies upon the Department to prove that fraud had been committed for invoking provision of Section 11-A Proviso, of the Central Excise Act, 1944 - Excise Commissioner had relied upon the statement recorded by Excise Officer during investigation held against his firm and found that as Deepak Gupta had admitted that he had issued invoices giving incorrect Annual Capacity of Production as such the respondent has secured the previous order by producing forged document as he found that statement of Deepak Gupta was admissible under Section 25 of the Evidence Act - Decided against Department.
|