TMI Blog1989 (6) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... mpo carrying different varieties of biscuits valued at Rs. 6,321.26 P. from the appellants factory. Investigations were made, books seized and statements recorded and show cause notice dated 4-9-1984 issued under Rule 9(2) and under Rules 173Q and 226. After the proceedings, the Collector of Central Excise, Chandigarh passed the impugned order which is challenged in this appeal. 4. The learned Counsel for the appellants Smt. Archana Wadhwa, vehemently argued for the remand of the case for giving them an opportunity to cross examine the accountant as the entire findings of the learned Collector is based on the private note book written by the said accountant who has not been examined nor his statement recorded at the time of the raid of the investigating party. The Counsel has argued that the said accountant was in eniminical terms with them, in that, he had deliberately planted the said note book to trap the partners of the appellant firm and it is at his instance the raid had been done. The partners of the appellants firm had sought for his presence for cross examination but the learned Collector had failed to summon him and hence the proceedings are vitiated on that account, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise book which was lying in the office of the firm and was suspected to contain incriminating enterics showing the sales of biscuits to different parties without any account and without payment of C. Ex. Duty. Besides this private exercise note book, they have also seized (a) RG I Register (stock register from April 1983 to Dec. 1983 (b) office copies of bills showing the sale of biscuits and sweets. The entire records were thoroughly subjected to scrutiny and it was discovered that the sales of biscuits manufactured by the firm during the year 1983-84 was as under :- Sales as per RG-I Register from 1-2-1983 - i) 31-3-1984 - Rs. 231,086.75 ii) Value of biscuits removed from factory clandestinely as per exercise book from 2-12-1983 to 1-3-1984 - Rs. 13,67,649.80 Rs. 15,98,736.55 which was much more than the exempted limit of Rs. 7.5 lakhs. Thus the appellants had been evading Excise duty on the excess and clandestine clearances valued at Rs. 8,48,786.55 P. attracting Central Excise Duty to the tune of Rs. 95,482.86 P. as BED and Rs. 4,774.14 P. as SED totaling to Rs. 1,00,257/-. 7. The team made a close scrutiny of the private n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be complied with as he was not a prosecution witness nor his statement recorded nor relied upon, hence the case was adjourned to 17-9-1985. The counsel appeared on this date but sought permission to file their documents and written arguments at a later stage but to permit them to submit their oral submission on 27-9-1985. They cross examined Sh. Raj Kumar, Inspector who had investigated the case. On 27-9-1985, the counsel filed his written arguments and sought for release of seized goods unconditionally and also for dropping of the proceedings. 9. The show cause notices were served on M/s. Ghai Di Hatti M/s. Karnal General Stores but they failed to submit their replies. M/s. Darshan Singh Pritam Singh had sought for copies of documents and personal hearing. He was asked to contact the Asstt. Collector and collect copies of documents from him. The case was fixed for hearing on 11-11-1985 and this date of hearing was informed to the party and his counsel. But the party sought for an adjournment by letter which was granted and a fresh hearing was fixed for 22-11-1985. The date of hearing was duly intimated. But however, the letter of hearing was returned unserved with endor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... biscuits shown to me . Further, he has stated with reference to the description of biscuits shown in the sales bills the prices charged in our bills tally with the value given in the said note book . The said partner Sh. Gurdarshan Singh had also produced several other documents, bills etc. of which entries were tallying in the private note book. He has not stated either in his voluntary statement or later at any time that this private note book is a handy work or manipulation of their accountant to trap them nor he has disowned it. He has explained the entries in the note book with bills and admits the entries and also states that the accounts were written by their accountant Sh. Ved Prakash. 12. They have not filed any police complaint against the said Shri Ved Prakash against the alleged false book kept in the books to trap them. He has not been charge sheeted for misconduct nor punished. Even in their plaint filed against him before Senior Sub Judge Ludhiana for recovery of Rs. 11,178/-, they have not stated that he had fabricated this note book to trap them. They have filed the suit on 19-7-1985 much later date to the date of raid. They have produced the copy of his applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or evasive denial is not a denial. Further if a party has not raised a denial at an earliest point of time and remained silent for a long time and failed to disclose his defence and resiles from his statements after a long period of time then he is deemed to have no defence and such resilement made after a long lapse of time is not allowed to be withdrawn, but instead it means he has admitted the facts. It is well settled that admitted facts need not be proved. In the instant case, the private note book has been surrendered by Sh. Jeet Singh. Sh. Gurdarshan Singh after four months confirms the signatures of Sh. Jeet Singh in first and last page of the private note book and also confirms the entries of the bills in the said note book. It is an admitted document. In view of these circumstances, it is difficult to believe that the said private note book has been manipulated handy work of a disgruntled employee. It is pertinent to point out that if at all there was a dispute, it has arisen on 28-5-1984 on which date the said accountant filed his claim petition and on 19-7-1985 on which date they have filed a suit for recovery of sums. It appears to us that this defence is an after t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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