TMI Blog2010 (4) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... t and Rules mentioned above. However, the amount of ₹ 10 lakhs (Rupees ten lakhs only) already paid by the assessee can be adjusted while paying the above amount. 3. I confirm a sum of ₹ 72,15,522/- (Rupees seventy two lakhs fifteen thousand five hundred and twenty two only) towards the duty demanded from M/s. Uniwoods, Shanthipallam, Kumbla, Kasaragode, under the same Act and Rules mentioned above. 4. I confirm a sum of ₹ 73,59,665/- (Rupees seventy three lakhs fifty nine thousand six hundred and sixty five only) towards the duty demanded from M/s. Wood Crafts, Shanthipallam, Kasaragode, under the same Act and Rules mentioned above. 5. I confirm a sum of ₹ 26,73,758/- (Rupees twenty six lakhs seventy three thousand seven hundred and fifty eight only) towards the duty demanded from M/s. Universal Wood Crafts Co., Shanthipallam, Kumbla, Kasaragode, under the same Act and Rules mentioned above. 6. I confirm a sum of ₹ 23,24,056/- (Rupees twenty three lakhs twenty four thousand and fifty six only) towards the duty demanded from M/s. Mailatty Wood Industries, Chowki, Mailatty, Kasaragode, under the same Act and Rules mentioned above. 7. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... National Wood Products and M/s. Bharath Chemicals, under Rule 173Q of erstwhile Central Excise Rules, 1944 read with Sec. 38A of Central Excise Act, 1944. However, I give an option to redeem the same on payment of a fine of ₹ 30,000/- (Rupees thirty thousand only) each under Sec. 34 of Central Excise Act, 1944. 12. I impose a penalty of ₹ 50,000/- (Rupees fifty thousand only) each, under Rules 173Q and 209A of the Central Excise Rules, 1944 read with Sec. 38A of Central Excise Act, 1944 on S/Shri K. Mohammad Arabi, (Partner of M/s. National Boards and M/s. Darvesh Plywoods and proprietor of M/s. Mailatty Wood Industries), Sri M.A. Aboobacker, Partner, M/s. National Boards, Kumbla, Sri P. Abdul Khader, Partner, M/s. Darvesh Plywoods, Kumbla, Smt. M. Assyamma, Proprietor, M/s. Universal Wood Craft Co., Kumbla, Sri N.A. Mohammad, Proprietor, M/s. Wood Crafts, Kumbla, Sri N.A. Mohammad, Proprietor, M/s. Uniwoods, Kumbla, Shri Abdul Muneer, Proprietor, M/s. National Wood Products, Kunjathur and Sri Abdulla Moidu Haji, Proprietor, Bharath Chemicals, Kumbla. 13. I confiscate the 1016 Nos. of Plywood sheets valued at ₹ 2,86,389.20 (Rupees two lakhs eighty six thousa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,512/-, ₹ 58,533/-, ₹ 2,86,389/- and ₹ 15,056/- and proposing penal action under Central Excise Rules, 1944 (CER); and also proposing confiscation of Indian currency for ₹ 20,66,940/-, Demand drafts and clieques seized at the office premises of Sri K. Mohammad Arabi, under Section 121 of Customs Act, 1962, as made applicable to Central Excise Act, 1944 (the Act) and proposing penal action under CER against him. (2) Show cause notice No. 20/98, dated 2-8-1999 issued to A1 to A8, Sri K. Mohammad Arabi, Partner of A3 and A4 and Proprietor of A7, Sri M.A. Aboobacker, Partner, A4, Sri P. Abdul Khadar, Partner, A3, Smt. Asiyamma, Prop. A8, Sri E.A. Ahammad, Prop. A1, Sri N.A. Mohammad, Prop, A2, Sri Abdul Muneer Prop., A6 and Sri Abdulla Moidu Haji, Prop. A5, demanding duty amounting ₹ 7,59,24,737/- being the amount short paid by the above units during the period from 1994-1995 to 1999-2000 (upto June 1999) with interest following proposed clubbing of clearances of all the above plywood/block board manufacturing units together for the purpose of determining their entitlement to SSI exemption, alleging undervaluation of the goods manufactured and clandesti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring units involved. (iv) Blind reliance was placed on the statement given by Mr. Ashok Kumar who was only an employee of M/s. Universal Wood Craft Co., to justify the same as forming the basis for sustaining the said charge of undervaluation for all the manufacturing units involved. (v) Similar methodology has been adopted for placing reliance on the statements given by a few of the dealers which also did not stand the test of cross examination who have been made available for cross examination and further being third parties, they were not obliged to retract their statements. (vi) While ordering release of the cash of ₹ 20,66,940/- seized from the office of Mr. Mohammad Arabi, it has been accepted in Paragraph 60 of the impugned Order as under :- In the instant case I find that the department has not adduced any document, incriminating or otherwise showing the details of plywood viz., quantity, size, rate, date of sale, name of the purchaser/dealer, amount received from each person/dealer for each sale, total amount showing the aggregate amount received as ₹ 20,66,940/- etc., to prove that the currency under seizure are the same sales proceeds received fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them as basis for finding undervaluation. The investigating authority never questioned Shri Mohammed Arabi, on whose instructions the said price list had been issued. The charge of undervaluation could not be limited to a period from 15-7-1996 to 2-9-1997 as there was no such charge relating to the preceding period or the following period. The statements relied on in the adjudication were not given voluntarily; these were dictated by the officers. Therefore, the Commissioner could not have relied on the price list to decide the realization of sale proceeds of the impugned clearances. The alleged price list had been recovered from the office of Shri Mohammed Arabi and not from the factory premises of any of the assessees. The same had been allegedly recovered from the premises of one of the dealers; this could not be a basis for determining the price realized by any of the manufacturing concerns. The impugned order proceeded on the assumption on the basis of a single letter on plain paper without details of the assessee. This was obvious as the Commissioner ordered release of entire cash, DDs, Cheques etc. seized along with interest. It was wrongly assumed that the price list refle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- as against the invoice price of ₹ 43,714/-. This was 491% higher compared to the invoice price. The quotation slip pertained to M/s. Plywood Plaza, Mysore but no statement had been recorded from the said dealer. Preparation of the quotation slip did not establish receipt of cash. Dealers S/Shri Thomas Rajan and Krishna Kumar who were cross examined denied making payment against quotation slip. The investigating agency could not produce any evidence to establish that quotation slip represented the actual price realized. The Commissioner had relied on the statements retracted in cross examination ignoring affidavits furnished by suppliers of veneers and reply dated 1-12-2000 and 12-4-2002 by Shri Mohammed Arabi to find suppression of purchase of raw material. As regards cash payments and their accounting by dealers/customers of the assessees, no evidence was gathered/produced. The charge of undervaluation has been found without adequate evidence as held by various judicial authorities. The authority had ignored the affidavits filed by Shri Loknath, Shri Anwar Sadath, and the partner of National Boards Shri Abboobacker. Moreover, the investigation covered only the following c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by considering the manner of maintenance of the information, the said records are genuine representing the operations and thus based on the same the whole charge of clandestine removal could be affirmed. (v) Further, for the purposes of valuation and demand of duty for the alleged clandestine removal upheld, the same basis adopted during the said period for upholding the charge of undervaluation has been taken into account only covering the period 15-7-1996 to 23-9-1997, though the charge of clandestine removal covered a larger period from 1994-1995 onwards. For the other periods, the amounts as indicated in the private records have been blindly adopted. In any case, no separate break up of figures pertaining to undervaluation and clandestine removal has been given in the impugned Order-in-Original and both have been combined for demanding the total differential duty with interest, penalty etc., thereof. 11. The following grounds are raised against the finding of clandestine removal by all the assessees : ■ Not even a single statement has been recorded from any person who is alleged to have received the goods clandestinely removed and the same has been made only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndestine removal was on the department and the same cannot be said to have been discharged in the facts and circumstances of the matter involved herein and in the light of the principles laid down in several case laws applicable in this regard. Further, the submissions made by each of the above said six independent concerns regarding demand itself being more than five years in several cases have been totally ignored and brushed aside while passing the impugned Order-in-Original. Above all, even for determining the duty on the alleged clandestine removals, during the said period of alleged undervaluation i.e., 15-7-1996 to 23-9-1997, the value indicated in the records relied upon has not only been ignored but the same has been artificially inflated, which cannot be sustained at all since no evidence has been furnished to substantiate the same particularly during the said period. To put it differently, the value as per the private records has been adopted for the period before 15-7-1996 or after 23-9-1997 and such a methodology adopted for demanding duty would be totally baseless, arbitrary and cannot be sustained at all. In fact, no separate break-up of duty f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orating evidence relied on. The evidence was in the realm of suspicion; suspicion could not substitute evidence. The impugned order proceeded on the presumption that accounted sales of plywood were all by cheques; this was a wrong presumption. The findings in the order relying on third party evidence were demolished in cross examination. The investigation covered only a very small percentage of the total clearances involved. The order followed incomplete investigation. 13. As regards clandestine clearances, the learned counsel admitted that private records were not disowned. The question was whether clandestine removal could be found on the basis of private records. Not even one dealer s statement was recorded who was claimed to have received the goods. As regards raw materials, there was no evidence for purchase relatable to goods clandestinely manufactured. Burden to prove clandestine clearances was on the department. There was no evidence of removal of goods. In this connection, the learned counsel relied on the ratio of the judgment in the case of Gurupreet Industries v. CCE [1996 (82) E.L.T. 347]. There was no tangible evidence but only loose slips/day book. Mostly statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated evasion of duty due by systematically undervaluing the price of the goods in the invoices while maintaining quotation slips with figures intelligible only to the appellants. As regards clandestine clearances learned special counsel submitted that private records were seized from the appellants such as the day book under mahazar. At no point of time, the fact of raising invoices against day book entries were disowned. He invited our attention to paragraph 33.2 of the order-in-original which dealt with clandestine clearances by Darvesh Plywood. In the said paragraph, the Commissioner had found that Shri Ravindranath had written the invoices as per the statement of Shri Arabi, Managing Partner, Darvesh Plywood. Shri Ravindranath himself had identified such invoices recovered by the authorities from the dealers of the assessee. These were invoices bearing Sl. No. 1 to 242 contained in the day book recovered from Darvesh Plywoods. These accounted for a total ₹ 1,11,03,028/- in the year 1994-95. The assessee started paying duty only from 29-9-1995 as it crossed ₹ 30 lakhs clearance on that date. Duty was payable from 1st of April, 1995. Moreover, the assessee did not giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rahiman stated that the said pricelist was sent by post by M/s. National Boards, Kumbla and showed the actual price of plywood products charged and not those quoted in the invoices. (These were far less than the list price). They used to make payments as per the rates shown in the pricelist. Shri Narayan Bhat, an employee of Shri Mohammed Arabi stated that the said letter had been signed by him and sent by him. This was intended to inform all the dealers of plywood about the increase in prices effective from 15-7-1996. Three pricelists were seized on 23-9-1997 from the handbag of Shri Ashok Kumar, clerk of M/s. Universal Wood Crafts, who attended to preparation of sales invoices at M/s. Uniwoods and M/s. Wood Crafts. These pricelists contained prices for different varieties of plywood/blockboards applicable for dealers of the appellants products in various states. These prices were much higher than the invoice prices. Shri Ashok Kumar stated that the prices figuring in the pricelists represented the actual prices charged from the customers and handed over to Shri Mohammed Arabi. The invoice price was not the actual price. Two more letters dated 25-12-1996 and dated 15-9-1997 were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rresponding invoice showed ₹ 46,438/-. This position was explained by Shri Raveendranath, Supervisor, National Boards in his statement dated 20-11-1997. 17. Daily statements of account recovered from the residence of Shri Mohammed Arabi showed collection of various amounts in cash from different persons as follows :- On 17-9-1997 Moideen Mogral - ₹ 50,000/- Proprietor - ₹ 2,03,150/- Anvar Sadath - ₹ 4,31,600/- T.T. Plywoods - ₹ 63,000/- On 18-9-1997 Moideen Bhai - ₹ 50,000/- On 19-9-1997 Modieen - ₹ 50,000/- Ibrahim Khalid - ₹ 1,81,500/- Chittan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counting lower value for raw materials procured, the Commissioner found invoices of M/s. Classic Veneers, Pariyaram PO, Kottayam seized from Shri Arabi s office (para 25.1) showing 18 paise per sq. ft. whereas the paper slips attached with the invoice showed price of 48 paise per sq. ft. A document seized from National Boards and Darvesh Plywoods, a statement of purchase of core veneer for 1996-1997 by National Boards, Uniwoods, Darvesh Plywoods and Wood Crafts showed purchases from several parties but only purchases from National Wood Products and National Veneer Products were accounted (para 25.2). Relying on statements of the employees, Commissioner found that cost of rubber wood and veneer purchases were grossly undervalued for depressed accounting, for instance instead of paise 30 to 50 per sq. ft. for veneers they accounted paise 9 to 15 per sq. ft. and in the case of rubber wood, for an actual price ranging from ₹ 1,800/- to ₹ 1,950/- only ₹ 900/- per MT was accounted (para 25.3 and 25.4). As regards resin, the proprietor of M/s. Bharath Chemicals admitted that consignments were supplied to the appellant units without raising invoices. The adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unit under invoice No. 1, dated 1-4-1994 to No. 140, dated 5-11-1994 (same invoice Nos. and same period as parallel invoices) was ₹ 29,36,002.62 which amount has only been seen to be declared before Central Excise authorities when they applied for Central Excise Registration. 29.1. As regards M/s. Darvesh Plywoods, I perused the document, a bunch of papers found in a Day book seized (Annexure C.40) from the office of M/s. National Boards and M/s. Darvesh Plywoods which shows that during the period from 1-4-1994 to 31-3-1995 their clearance value vide invoice Sl. No. 1 to 281 was ₹ 1,11,03,028/- whereas they have not paid appropriate duty during the above period. Similarly during 1995-96 from a file under seizure (Annexure 41) from the above premises they made clearances valued at ₹ 9,43,371.90/- under invoice No. 71, dated 13-7-1995 to No. 96, dated 22-9-1995 but no such clearance has been declared to the department. 29.2. The documents relied on by the department as evidence of clandestine removal in respect of M/s. Mailatty Wood Industries also examined by me and I find from the document under seizure (Annexure C-43) from the office of M/s. National Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andwritings. Moreover, in invoice No. 176, dated 22-8-1997 seized from M/s. B.S. Enterprises, Pune (Annexure C-53 54) and in the copy thereof in the Invoice Book seized from the above factory also seen to be written on two different occasions. Thus I find that parallel invoices for clearance of goods have been seized from the office premises of M/s. National Board and M/s. Darvesh Plywoods and the Units have not accounted these clearances in their accounts and they have not satisfactorily explained the existence of these parallel invoices. 29.5. In respect of M/s. Bharath Chemicals, the evidences relied on by the department to prove clandestine removals by them, are certain Note- books and paper chits seized from the above factory. On a perusal, it was seen that the total production and clearance of UF Resin recorded in the sheet No. 4 8 and in the Note Book No. VII under seizure seen as 76000 Kgs and 82100 Kgs respectively, whereas the production and clearance as per RGl register seen to be only 56000 Kgs and 54250 Kgs respectively. 30. I find that the allegation of undervaluation of goods and clandestine clearance of goods are not solely based on the statements of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entified invoices as those prepared by him. In the reply to the show cause notice, the assessee has not refuted the allegation of maintenance of parallel invoices, but contended that Shri Ashok Kumar was not an employee of the unit (to give information he furnished). The Commissioner found that certain invoices figuring in file C-38 had been seized from different dealers of plywood supplied by the unit. These invoices bore the seal of sales tax check-posts on the way. It shows that invoices contained in file C-38 were used by the assessee for removal and transportation of the goods. The proprietor Shri E.A. Mohammed, Wood Craft in his statement dated 4-3-1998 had admitted that Shri Ashok Kumar had prepared the invoices for sale. Invoices contained in file C-39 showing lower values obviously did not reflect the actual amounts realized. The invoices figuring in file C-38 were found to have been used for actual transport indicates that the invoices of file C-38 covered clearances of assessee s products and price realized. 20.2 M/s. Darvesh Plywoods 1994-95. The evidences relied on for finding clandestine removal by M/s. Darvesh Plywoods are : (i) the day book (C-40) s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow that no duty was paid on the goods removed during the period 13-7-1995 to 22-9-1995. The party in their reply dated 1-12-2000 and also in their subsequent reply dated 12-4-2002 admitted the case as an inadvertent omission. As such the department s case is proved. 20.3 Mailatty Wood Industries 1995-96 The following records were relied on. (i) Three sheets of paper with details of sales effected to various dealers contained in file I-8 seized from the office of M/s. National Boards and M/s. Darvesh Plywoods on 23-9-1997. The paper contained details of sales effected as per Invoice No. 1 to 134 during the period from 24-11-1995 to 31-3-1996. (ii) Another set of papers contained in the same file which had these details. The sale value as per the documents is ₹ 54,55,667.55. (iii) Certain invoices relating to the unit recovered from the dealers which tallied with the details as per these set of papers. After considering the evidences produced on behalf of the parties, the adjudicating authority found that assessee had not disputed seizure of the documents i.e. Statements of 3 sheets having five written pages with details of sales effected, both local ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limit of 30 lakhs. Certain invoices of the assessee recovered from the premises of assessee s dealers tallied with the register entries. The party s defence was that relying on just four invoices (recovered from the dealers) for arriving at the turnover of ₹ 97,67,593/- including the subsequent clearances was not correct. The sales figures included those of timber, block board frames, etc. (which are non-excisable). The conclusion as to the clandestine removal is based on assessee s own document and not on the four or five invoices received from the dealers. The assessee s contention that the sales figures as per entries in the register contained sales of non-excisable items needs examination. 20.5 M/s. National Wood Products The Commissioner relied on a register containing details of shift-wise production of block board and plywood for the period for 27-8-1996 to 2-1-1997 and date-wise clearance of the goods for the period from 27-8-1996 to 2-1-1997; and another register containing details of clearance of block board and plywood for the period from 2-1-1997 to 26-9-1997. Both the registers were seized under mahazar from the unit after search. Shri Joyce Kurian, cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the clandestine production and clearances without payment of duty by Bharath Chemicals is established. They did not dispute seizure of the 8 notebooks from their premises nor the entries in the notebooks or the particulars appearing in sheets of paper recovered from the handbag of Shri Ashok Kumar. 21. The cases of clandestine removal against the above assessees have been built up on private records relating to production, resmoval and sale of excisable goods, seized from the common office of the group companies or from the premises of the concerned units or from the possession of responsible employees of the units who are competent enough to explain the contents of the private records. The records seized were admitted to be authentic by the employees who maintained them. The assessees never disowned these documents. The entries in these private records were corroborated by certain invoices used for transportation of the goods from the assessees premises to their dealers premises. The records written in chronological order, with details of date-wise, batch-wise production, unit-wise dispatch, weekly settlement etc. proved to be maintained in the course of normal day to day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub clearances of the units treating them as a single manufacturer was dropped; the same proposals contained in 12 periodical show cause notices issued later were also dropped. Demand of duty towards clearances of urea formaldehyde resin by A-5 was confirmed and penalty imposed on the assessee. Show cause notice No. 20/98, dated 2-8-1999 which also dealt with the proposals relating to Bharath Chemicals deal with the two main disputes of considerable revenue implication, namely undervaluation of accounted clearances of plywood/blockboards by the seven plywood units and clandestine manufacture and clearances of such goods by the same assessees. 24. We have discussed at length the facts of the case and the findings in the impugned order. We find that the Commissioner, relying on strong circumstantial evidence found that the appellants had undervalued clearances of plywood and blockboards during the material period. We find that clandestine clearances by the appellants were also similarly reliably found by the Commissioner. The finding of undervaluation and clandestine clearance was made following the principle of preponderance of probability. As rightly argued by the Revenue, no sys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of third parties could be taken as piece of evidence after considering evidentiary value of such statements tested in cross examination. We find that most of the witnesses are employees of the appellants. They cannot be treated as third parties. They are part of the organization of the assessee. Statements recorded under Section 14 of the Central Excise Act from them undisputedly has evidentiary value. In cross examination, third parties like dealers as well as employees of the appellants submitted that they had given their initial accounts of admission at the instance of the officers as they were threatened or coerced. We find that the cross-examination of the witnesses took place a few years after the initial statements were recorded. In the case of some witnesses more than one (or two) statement was recorded and over a period of time. None of the witnesses complained of threat or coercion before they were summoned for cross-examination. The initial accounts were similar on facts deposed by assessees employees u/s 14 of the Act. In the circumstances we reject the retraction by third party witnesses. The appellants have relied on the judgment of the Apex Court in the case of K.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervaluation. (ii) Pricelist jittered with handwriting in pencil recovered from one of several dealers not to be relied upon. (iii) Slip/chit by themselves as evidence of undervaluation inadequate. We find that these ratios are relevant in the facts of the present case but cannot be held to jeopardize the findings by the Commissioner in view of the overwhelming probability of the transactions found by him having actually entered into by the appellants. 26. (a) In Hunsur Plywood Works Pvt. Ltd. v. CCE, Mysore [2009 (201) E.L.T. 239 (Tri.-Bang.)], it was decided that much reliance cannot be placed on retracted statements alleged to have been obtained under duress. In the present case, we have found that the statements were corroborated by other reliable circumstantial evidence including documentary evidence. Moreover, the allegation of duress and threat was raised after a few years of giving the initial statement by all witnesses; this was not substantiated. (b) Kalvart Foods (I) Pvt. Ltd. v. C.C.E, Mumbai [2003 (152) E.L.T. 131 (Tri.-Del.)]. In this case it was laid down that charge of clandestine removal/manufacture of the goods by the assessee had to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r version is given. (5) K. Rajagopal v. CCE [2002 (142) E.L.T. 128 (Tri. - Mad.)] Private notebooks not a conclusive piece of evidence to prove clandestine removal. No other corroborative evidence with regard to purchase of raw materials and sale and purchase by particular reasons. Clandestine manufacture and removal not substantiated - Demand not sustainable. 28. The Revenue has relied on the following case laws : (i) Gulabchand Silk Mills Ltd. [2005 (184) E.L.T. 263 (Tri. - Bang.)] wherein it was observed as follows : So the practice of sending non-duty paid goods from M/s. GSML is very evident not only from the statements of the various persons, but also the incriminating documents. In any type of clandestine activity, the persons try their best not to leave any evidence. We cannot expect persons indulging in clandestine clearance to faithfully put the details of all such clearances in some register and append their signature. This is never done. Hence, clandestine activity at best can be established only by circumstantial evidence. It should also be borne in mind that it will be humanly impossible to establish every link in the chain of clandestine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in this register and for which demand has been made in Annexure C-1 to the show cause notice. We find that mathematical procession is not required for giving evidence of each entries for which show cause notice has been issued for demanding duty. Once the authenticity of the register maintained for 1993-94 has been established, similarly register maintained for 1994-95 till date of seizure has to be treated as authentic and binding on the respondents. (iv) Beauty Dyers v. CCE, Chennai [2001 (136) E.L.T. 339 (Tri. - Mad.)] is cited to rely on the following observation : ..There is nothing on record to show that these were not voluntarily given. There is also nothing on record to show that they were effectively retracted within close proximity of the Revenue obtaining them. On the contrary, none retracted them. The only discordant note is when some resiled during cross-examination at a much later date. We cannot allow this appeal only on this ground. It is not that Revenue had denied cross-examination of all witnesses. Looking into their large numbers, they had given appellants an opportunity to chose five witnesses who could be summoned. In our view, this course of actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants have submitted that third party records need not be relied upon as no evidence was available with the Department to prove that raw material was actually received by them. They have also filed certain affidavits. However, the affidavits though sworn in early but was submitted after lapse of time. We note that the statement of the raw material suppliers were recorded over a period of time. It was not a question of one day when the statement was recorded. Statements were recorded on a number of days. In no statement did the appellants state that the statements were recorded in duress as they stated in their cross examination. Since the statements were recorded over a period of time and since during that period the persons whose statements were recorded did not complain of any threat or duress, therefore, claiming duress and threat is an afterthought. (viii) Following paragraphs of Swastik Sanitary Wares Ltd. v. CCE, Ahmedabad [2001 (129) E.L.T. 373 (Tri. - Del.)] are relied on. 12. The statements recorded under the provisions of the Central Excises Act were not retracted. It was only in reply to the show cause notice that various averments made in the statements were soug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk that it is not the most appropriate basis, the estimate made by the assessing authority cannot be disturbed. In the present case there is no dispute that the assessee s accounts were rightly discarded. (x) Maharashtra State Board of Secondary and Higher Education v. K.S. Gandhi Ors. [(1991) 2 SCC 716] is cited to rely on the following observation : 37. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary facts though not proved strictly in conformity with the Evidence Act. The evidence must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20-424/2009, dated 21-4-2009 [2009 (248) E.L.T. 440 (Tri.)] in Noble Ply and Others (3) Final Order No. 414 to 419/2009, dated 21-4-2009 [2009 (248) E.L.T. 313 (Tri.)] in Prestige Boards (P) Ltd. Others As regards valuation of goods cleared without payment of appropriate duty prior to 1-7-2000, this Bench passed similar orders in all the cases. We cite the decision in the case of M/s. Cera Boards Doors and others contained in its paragraph 11.10. We are of the view that the normal price in respect of the clearances prior to 1-7-2000 should be determined by the Commissioner on the basis of the available evidence in accordance with law. Once the normal price in respect of each variety of goods is decided then that value should be adopted for calculation of duty. Once that is done the differential duty can be calculated. Therefore, this cannot be done at the level of the Tribunal. All the evidences have to be examined. We make it clear that on the basis of the available evidence, the normal price should be decided by the Commissioner in respect of the goods cleared during the relevant period. Once that is done, that would be applicable to all clearances. We want to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acuum relying on questionable material or weak evidence. When Revenue has found important evidence for the assessee having made clandestine clearances, the onus to prove that the assessee was not guilty of such transgression/violation shifts to the assessee. Assessee cannot rely on decisions in cases of dissimilar facts and still maintain that the Revenue had not adduced evidence of the charge with clinical precision requiring it to produce tangible evidence. Once the allegation is prima facie established with unassailable material, the insistence on concrete evidence becomes a weak defence. There is no dispute that Shri Arabi controlled all these units; and he operated mainly through Shri Narayan Bhat who acted at the behest of Arabi. Such technical objections as Shri Bhat being not on the muster roll of A1 to A8 and his statements are third party evidence deserve to be ignored in view of the facts of the case and we do so. The case laws cited by the Revenue amply support our reasoning. Commercial offences involve usually huge amounts and intelligent methods are adopted without leaving evidence that can be easily gathered. However, it is universal that any crime will leave some ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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