TMI Blog2010 (12) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... is not possible to state that the Tribunal has committed any legal error in giving benefit of doubt to the assessee - It is a basic and settled law that what is admitted need not be proved - Appeal is dismissed - 2154 of 2009 - - - Dated:- 9-12-2010 - Harsha Devani and H.B. Antani, JJ. REPRESENTED BY : Ms. Naynaben K. Gadhvi, for the Appellant. None, for the Respondent. [Order per : Harsha Devani, J. (Oral)]. In this appeal under Section 35G of the Central Excise Act, 1944 (the Act), the Commissioner, Central Excise, Customs and Service Tax, Daman has challenged order dated 25th March, 2009 [2009 (246) E.L.T. 191 (Tribunal)] made by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) proposing the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be issued to the assessee, which culminated into an order made by the adjudicating authority confirming the duty and the penalty on the assessee and personal penalty of the Director. The assessee as well as the Director carried the matter by filing separate appeals before the Commissioner (Appeals) who vide order dated 15th February, 2008 dismissed the appeals. Both the assessee as well as the Director preferred separate second appeals before the Tribunal, which came to be allowed vide a common order. 4. Ms. Nayna Gadhvi, learned Standing Counsel for the appellant assailed the impugned order of the Tribunal submitting that the Director of the respondent during the course of preventive checks had admitted before the panchas that the raw ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , be formulated by the Court. 5. As can be seen from the impugned order of the Tribunal, the Tribunal has noted that before the Commissioner (Appeals) on behalf of the assessee it had, inter alia, been submitted that the physical stock of all the finished products and inputs duly tallied with the record except shortage of one input, that is, HD by 9975 kgs; there was no evidence supporting the allegations of illicit clearance and the demand was confirmed merely on the ground that the Director had voluntarily given the statement; the statement was not retracted to avoid further litigation; that for manufacture of insulated wares of plastic, other inputs like Polyol and Isocynate were absolutely essential and the same were tallying; the Mod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l products. The Tribunal, therefore, extended the benefit of doubt to the assessee and allowed the appeals by setting aside the order impugned before it. 7. Thus, on the basis of findings of fact recorded by the Tribunal upon appreciation of the evidence on record, it is apparent that except for the shortage in raw material viz., HD which was disputed by the assessee and the statement of the Director, there was no other evidence on record to indicate clandestine manufacture and removal of final products. On behalf of the revenue, except for placing reliance upon the statement of the Director recorded during the course of the search proceedings, no evidence has been pointed out which corroborates the fact of clandestine manufacture and rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC, it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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