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TMI Blog2010 (2) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... cts, in brief, are that the Central Excise officers intercepted a Tempo bearing registration No. MH-04 S-9479 on 1-7-2000 and found consignment of biscuits accompanied by cash/credit memo issued in the name of M/s. Globe Food Products, an invoice No. 82 dated 1-7-2000 for Rs. 51,168/- and delivery challans issued by M/s. Creative Marketing and plain chits bearing No. 51 & 52 dated 1-7-2000 used also as delivery challans. The tempo driver was also carrying cash/credit memo book in the name of M/s. Globe Food Products. The driver stated that the entire goods, which were being carried in the tempo, were actually loaded from M/s. Champion Confectionery (respondent in Appeal No. E/2829/03). The entire consignment including consignment covered by the invoice of the respondent valued at Rs. 1,80,898/- was seized. The tempo valued at Rs. 1,50,000/- was also seized. 3.1 The officers conducted follow up action by visiting the manufacturing unit namely M/s. Champion Confectionery and their marketing firm M/s. Creative Marketing. At the factory premises, it was noticed that no production reports were available after 17-6-2000 and the RG-1 entries were made only upto 17-6-2000. They seized bis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11AC; he confiscated the goods seized from the tempo valued at Rs. 1,80,898/-, but allowed the same to be redeemed on payment of fine of Rs. 70,000/-; he confiscated the goods valued at Rs. 4,94,785/-, which was found unaccounted and lying in the factory but allowed the same to be redeemed on payment of fine of Rs. 1,25,000/-. He also confiscated the vehicle No. MH-04 S-9479 valued at Rs. 1,50,000/- under Section 115 of the Customs Act, 1962 as made applicable to like matters of Central Excise but allowed the same to be redeemed on payment of fine of Rs. 30,000/-. In addition, he imposed penalties on the following persons as detailed below :- (i) Shri G.S. Kamath, Manager - Rs. 50,000/- (ii) Shri Vilas R. Bura, Driver - Rs. 20,000/- (iii) Shri Vishwas Waiker, Owner of vehicle - Rs. 20,000/- (iv) M/s. Creative Marketing - Rs. 20,000/- (v) Shri Mehul D. Hariya, Partner - Rs. 20,000/- (vi) Shri Kirti B. Dedhia, Accountant - Rs. 10,000/- 4.2 On appeal by the parties, the Commissioner (Appeals) gave substantial relief to the parties by modifying the order of the original adjudicating authority. Though he upheld the finding of original adjudicating authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorized signatory of the manufacturing unit revealed that nearly 50% of the clearances are made without following Central Excise procedures and such admission has been corroborated by the statements of the proprietor of the manufacturing unit and the statements of the person concerned with the marketing firm, the value of clearances has been correctly worked out by the original authority. The so called retractions relied upon by the Commissioner (Appeals) have been referred for the first time only in the reply of the show-cause notice dated 11-4-2001. No retraction has been given to the officers, who recorded the statements. However, he fairly concedes that the demand of duty by the original adjudicating authority has not taken into account the effect of the Notification No. 47/2000 dated 1-9-2000. Therefore, he seeks setting aside the order of the Commissioner (Appeals) and restoration of the order of the original adjudicating authority in matters relating to the demand of duty, imposition of penalty etc. except to the extent of giving effect to the Notification No. 47/2000 dated 1-9-2000. The learned DR relies on a series of judgments in support of his contention that belated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carefully considered the submissions from both sides. It is to be noted that the investigation started with seizure of goods clandestinely removed. The consignment cleared from the factory of the respondent was found with the cash-memo issued in the name of M/s. Globe Food Products and also with chits numbered as 51 & 52. The said consignment was admittedly cleared from the factory of the respondent with a view to keep the value of clearances below the exemption limit. When the factory was visited by the officers, the RG-1 account was not updated having been written only upto 17-6-2000. There was stock valued nearly about Rs. 5 lakhs, which was not accounted in the statutory records. It was also noticed that slips with Sr. No. 43 to 50 indicating unaccounted removal on 30-6-2000 were found on the date of visit by the officers. It is also on record that the respondents were in the habit of destroying the documents. Obviously, the chits with Sr. No. 1 to 42 were not available. These are tale-tell marks of suppression of production and clandestine removal. The authorized signatory of the respondent firm, the proprietor of the respondent firm, the accountant of the marketing firm and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statements recorded under Section 14 of the Central Excise Act on different dates. The retraction of any statement, in our opinion, should be made to the authority before whom the statements were given. Thus, it is between the giver of the statement and the person before whom the statement was given. Any communication addressed to others can only be considered as representation or compliant. It is not their case that any retraction was given to the officer, who has recorded the statements. It is also not their case that they made any representation to the senior officers, who supervise the work of the officers, who recorded the statements alleging any threat or compulsion on the part of the officers while recording the statements. The affidavits have been signed before the Special Metropolitan Magistrate one set on 4-7-2000 and another set on 6-7-2000. These affidavits have been kept as a closely guarded secret and revealed for the first time in their reply to show-cause notice dated 11-4-2001. Even in these affidavits, it was not being denied that there were clandestine clearances. These affidavits cannot be considered as retraction of statements given under Section 14 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) has set aside the confiscation of the goods valued at Rs. 4,94,785/- on the ground that no inference could be made that they were meant to be clandestinely removed. It is not disputed that the goods were in the fully manufactured and packed condition but not accounted in the RG-1 register. Accounting of fully manufactured goods is a strict obligation of a registered assessee and therefore, failure to enter them in the records renders the goods liable for confiscation. Of-course, it cannot be presumed that the said goods were intended to be removed clandestinely. The confiscation is to be restored on the limited ground that they were not accounted for. 9.3 The Commissioner (Appeals) has upheld the order of confiscation of the vehicle used for transporting goods valued about Rs. 1,80,898/-, out of which goods valued at Rs. 1,29,730/- was non-duty paid. It is not disputed that the driver was knowing that the goods were loaded from the respondent firm but he was carrying documents relating to M/s. Globe Food Products and plain chits to cover part of the goods. In addition, he was carrying the cash-memo book of M/s. Globe Food Products. The vehicle used in transporting non-duty pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been considered by the original authority. 9.5 In the light of the above, the appeal by the Department, cross-objection by the respondent and appeal by Shri Vishwas Waiker, the vehicle owner are disposed off as follows : - (a) Appeal No. E/2846/03 is disposed off by allowing to the vehicle owner with an option to redeem the vehicle on payment of redemption fine of Rs. 30,000/-. (b) Appeal by the Department is partly allowed. (i) The finding of the Commissioner (Appeals) setting aside the determination of the excess value of clearances adopting 50% as unaccounted clearances is set aside. Therefore, the value of clearances as arrived at by the original authority is restored. However, the duty liability and consequently the interest and the penalty under Section 11AC require to be re-worked by the original authority after taking into account the effect of the Notification No. 47/2000 dated 1-9-2000. For the above limited purpose, the matter is remanded to original authority. (ii) The order of the Commissioner (Appeals) in setting aside the confiscation of the goods lying unaccounted deserves to be set aside and while restoring the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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