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2015 (4) TMI 689 - CESTAT NEW DELHI (LB)Clandestine clearance of goods - Removal of goods without issuance of proper invoices - Penalty u/s 11AC - Confessional statement by assessee - Whether duty could be demanded on the basis of confessional statement only as other evidences relating to manufacture, procurement of raw materials and transportation have not been produced by Revenue and such retraction of statement will have effect - Difference of opinion - Majority order - Held that:- statement dated 4.10.2001 had never been retracted until 1.8.2003 when the proprietor tried to claim that the entries in the loose sheets broadly tallied with their RG-I register. But for almost close to two years from 4.10.2001 there had been no representation alleging that the statement dated 4.10.2001 was obtained under duress. Indeed the statement dated 4.10.2001 was also confirmed by Shri Rajender Kumar, authorised signatory in his statement dated 8.10.2001 for which again there have been no allegations/representation that the same was obtained under duress. - proprietor was repeatedly summoned on 7.1.2003, 26.3.2003 and 1.8.2003 but he appeared only on 1.8.2003 when he so claimed. Difference between the quantities shown in the loose sheets and the RG-I register is precisely 500 pouches with respect of the pouches of ₹ 1 each and in full hundreds like 100, 200, 500 (save for one which is 150) for pouches of ₹ 2 each. Such neat differences are too neat to be really realistic in the given circumstances and raise a doubt about the genuineness of the RG-I register produced on 1.8.2003 when the said RG-I register was never produced by the appellants on the day of the visit/search and thereafter up to almost two years (i.e. up to 1.8.2003). The RG-I register was not recovered during search also. There was also no mention of the RG-I register in the statements of the proprietor or the authorised signatory; not even to the effect that it existed even if not found then, although RG-I register is required to be present in the factory 24x7 and is required to be made available to Central Excise officers on demand for verification. All of these facts, factors and circumstances are compelling to infer at least on the principle of preponderance of probability that the so called RG-I register produced on 1.8.2003 was nothing but a result of manipulation and fabrication. Further even at the time of recording statement dated 1.8.2003 Shri Praveen Kumar did not expressly retract his earlier inculpatory statement nor allege any duress or threat. Indeed the statement dated 4.10.2001 of Shri Praveen Kumar was written by his son and signed by him (i.e. Shri Praveen Kumar) and none of them in its immediate aftermath made any representation that the same was not voluntary. Indeed even the payment of duty has never been alleged by the proprietor or the authorised signatory to have been made involuntarily under duress or threat or inducement. In the case of K.G. Augustine Vs. CC - [1996 (5) TMI 253 - CEGAT, MADRAS], it was held that the statement made by person to be considered voluntary and true even if retracted when circumstances not showing any use of threat or coercion and also when corroborated by statements of other persons. In the case of K.I. Pavunny Vs. Assistant Collector (HQRS), Central Excise Collectorate, Cochin - [1997 (2) TMI 97 - SUPREME COURT OF INDIA], the Supreme Court held that confessional statement under Section 108 of the Act, 1962 is admissible as person giving statement is not an accused and voluntary statement is not to be a characterised to have been obtained by threat, inducement or promise and further, that the burden is on the person to prove that his statement was obtained by threat inducement or promise. - Decided favour of Revenue.
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