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2021 (4) TMI 569 - Commissioner - GSTClandestine Removal - seizure of unaccounted/excess goods - partner and manager of the assessee could not produce any documents or records related to the finished goods found in the premises - Confiscation of goods - redemption fine - penalty. HELD THAT:- Respondent no where raised any objection of search proceedings as well as Panchnama proceedings conducted by the investigating team from which it may be inferred that the entire proceedings were conducted in transparent and fair manner. During the proceedings the physical stock was also verified and it was found excess against the entries of stock register/books of accounts. The whole proceedings were done in the presence of two independent witnesses and in the presence of employees of the respondent/assessee and on later period the Partner of the Firm had also joined the search proceedings. During the proceedings, the statement of Accountant, Manager and Partner of the Firm were recorded under Section 70 of CGST Act before the proper officer. From the above facts, it is emerged that during the search proceedings the excess stock were found against the entries of stocks register and this fact have not been objected neither by the employees of the Firm nor by the Partner of the Firm himself. This fact has also been accepted by the adjudicating authority in his findings - the adjudicating authority‘s finding is based are on the submission of respondent/assessee only and he grossly ignored the statement of employees of the Firm which had endorsed rather admitted by the Partner of Firm himself and in the tax matter the statement has the evidential value under the evidence Act. In the various Supreme Court judgments it has been pronounced that the statement recorded before Tax Authority is merely not a statement recorded before Police Officer but it is a piece of evidence. The statement recorded under the said provisions constitute substantive piece of evidence and can be relied in adjudication proceedings - Even if such statement is retracted or diluted in subsequent statement, it can be appreciated in light of other circumstances and evidence. Levy of Redemption Fine - HELD THAT:- The adjudicating authority has erred by holding that the seized goods is not liable for confiscation and release the same contrary to this view it is found that the respondent assessee has contravened the provisions of Section 35 of CGST Act read with Rule 56 of CGST Rules, 2017. Therefore, seized goods is liable to confiscation in terms of Section 130 (1), (ii) & (iv) of CGST Act and rules made thereunder. However, since the goods has already been ordered to release the said seized goods by the adjudicating authority therefore there are no option but to impose the fine under Section 130 (2) in lieu of confiscation of the said released goods. Levy of penalty on firm u/s 122(1) (xvi) and (xviii) of CGST Act, 2017 - HELD THAT:- It has established that the assessee did not maintained the proper books of account at the time of search proceedings hence he violated the provisions of Section 35 of CGST Act and Rules made thereunder - the penalty under Section 122(1) (xvi) and (xviii) of CGST Act, 2017 upon the assessee is very well attracted in the instant case. Levy of penalty on partner - HELD THAT:- It has been established that the Partner of the firm is the key person who deals all the affairs of the Assessee firm. Therefore, he can not be escaped from any offence of the firm and it can not be imagined that without his involvement such kind of violations of the provisions of the act or rules made thereunder would be happened. Further, the Partner has himself admitted the said offence in his statement recorded under the provisions of law. Appeal disposed off.
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