TMI Blog2013 (8) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have been relied without his cross examination - apart from the statement there was no material before the Excise Commissioner to hold that the respondent has produced fake invoices - Statement was not recorded in the proceeding as such it could not be read as an evidence and there was no material for exercising the powers under Proviso to Section 11-A of the Act. Material to Prove the Fraud - Whether there was any material before the Excise Commissioner to hold that earlier order was obtained by committing fraud - Held that:- Statement had not been recorded as a witness in the proceeding as such there was no admissible evidence on record to hold that fraud has been committed by the respondent - The Excise Commissioner had il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein after referred to as the Act):- "Whether considering the facts after the Commissioner had determined the annual capacity of production, the Commissioner could review his order when he was informed that Deepak Gupta had issued fake certificates and as such the earlier determination was based on false and fabricated invoice/certificates regarding the annual capacity of production?" 2. The facts giving-rise to this reference are that M/S Govind Mills Ltd. (the respondent) was engaged in the business of manufacture of non-alloy steel ingots, by installing induction furnaces, falling under Chapter Sub-Heading No. 7207.90, of the Central Excise Tariff Act, 1985. The respondent opted for payment of central excise duty, under the compounded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made by the Excise Officer against M/S Steadfast Engineers, the manufacturer of crucibles of the respondent. During investigation, statement of Deepak Gupta, a partner of M/S Steadfast Engineers, was recorded by the Excise Officer on 20.08.1998, in which he had stated that invoices issued to the respondent did not show the correct Annual Capacity of Production and were issued without any knowledge that it would be used for central excise purposes and had he known that the invoices would be used for central excise purposes then he would not had issued the invoices. On the basis of the statement of Deepak Gupta, the Excise Officer submitted a report to the Commissioner of Central Excise, Allahabad that the respondent had secured assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upta recorded by Excise Officer was admissible in evidence under Section 25 of the Evidence Act. The respondent has committed fraud and filed forged certificates, as proved from the statement of Deepak Gupta as such the previous assessment can be reopened. On these findings he accepted the report of the department dated 20.03.1998 and determined the ACP as 26912.960 MT and MDL as Rs. 14,01,717/- w.e.f. 01.09.1997 and directed for realization of excise duty accordingly and confirmed the demand of Rs. 21,19,196/- and imposed penalty of Rs. 21,19,196/- and directed for realization of interest under Section 11 AB of the Central Excise Act. He also imposed penalty of Rs. 10,00,000/- on Sri C.P. Agrawal and Rs. 10,00,000/- on Deepak Gupta. 7. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Deepak Gupta recorded by Excise Officer during investigation, it is proved that the respondent has secured earlier order by producing forged invoices as such Excise Commissioner has rightly exercised his power under Section 11-A and recalled the order. Order of the Tribunal, holding that Excise Commissioner has no power to review, is illegal. 9. In reply to the aforesaid arguments, Sri Praveen Kumar submitted that admittedly there is no provision for review as such after passing the order, Excise Commissioner has become functus officio and has no power to recall his earlier order. He submitted that statement of Deepak Gupta was recorded in another proceedings, for which the respondent has no concern, as such his statement cannot be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer shall be proved as against a person accused of any offence. According to the Excise Commissioner as Excise Officer is not a police officer as such the voluntary statement made by Deepak Gupta before him was admissible and Section 25 of the Evidence Act will not apply. The confession is an admission and is relevant under Section 18 to 20 of the Evidence Act. It can be relied against the person who has made such confession as his admission and not against any one else. Statement of Deepak Gupta has not been recorded as a witness in this proceeding as such there was no admissible evidence on record to hold that fraud has been committed by the respondent. The Excise Commissioner has illegally treated the statement of Deepak Gupta as an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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