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2015 (7) TMI 501 - CESTAT AHMEDABAD

2015 (7) TMI 501 - CESTAT AHMEDABAD - TMI - Clandestine manufacture and removal of excisable goods - Imposition of interest and equivalent penalty - Demand based on confession statements made by some people - statements recorded were retracted subsequently by way failing affidavits within a few days - Held that:- It is now a well understood principle that a case of clandestine activity cannot be established simply on the basis of few confessional statements, which are retracted by the persons. I .....

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/2015 - Dated:- 30-6-2015 - Mr. H.K. Thakur, Hon ble Member (Technical),J. For the Appellant : Shri Alok Bhartwal, Advocate, Shri R.K Jain, Advocate For the Respondent : Shri Alok Srivastava, Authorised Representative ORDER Per: H.K. Thakur These appeals have been filed by the appellants with respect to O.I.A No. 168 to 172/2008(Ahd-III)CE/KCG/Commr (A) Dated 25.11.2008 issued on 02.12.2008 under Order-in-Original No. 35/Addl. Commr./2008 Dated 31.03.2008 upheld by the first appellate authority. .....

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f the main appellant and Shri Sanjay V. Deora, Director of M/s. Sampat Aluminium Pvt. Ltd. Penalties of ₹ 3,00,000/- each were also imposed upon Smt. Sneha S. Deora and Shri Amit V. Shukla, Directors of the main appellants under Rule 26 of the Central Excise Rules, 2002. 2. Shri Alok Bharatwal, Advocate and Shri R.K. Jain, (Advocate) appeared on behalf of the appellants and argued that the entire case of clandestine removal was based on the confessional statements of Shri Dilip B. Waghela, .....

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out giving any opportunity of explaining the case under the statement a penalty of ₹ 10,00,000/- has been imposed upon Shri Sanjay V. Deora. That statement of Shri Amit V. Shukla and Smt. Sneha S. Deora, Directors of the main appellant were also not recorded which is not sustainable as there is no evidence that these directors were in any way concerned with any clandestine activity. It was again argued by the Learned Advocate that other than two confessional statements, which were also ret .....

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) Emmtex Synthetics Ltd. Vs CCE, New Delhi [2003 (151) E.L.T. 170 (Tri. Del.)] (ii) Resha Wires Pvt. Ltd. Vs CCE, Bangalore [2006 (202) E.L.T. 332 (Tri. Bang.)] (iii) Vishwa Traders Pvt. Ltd. Vs CCE, Vadodara [2012 (278) E.L.T. 362 (Tri. 0 Ahmd.)] (iv) Arch Pharmalabs Limited Vs CCE, HYD. [2005 (182) E.L.T. 413 (Tri. Bang.)] (v) Nav Bharat Paper P. Ltd. Vs CCE, Ghaziabad [2004 (165) E.L.T. 564] (vi) S.T. Texturiser Vs CCE, Surat-I [2006 (200) E.L.T. 234 (Tri. Mumbai)] (vii) Gupta Sunthetics Ltd. .....

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s. Jyoti Engineering & Contractors was mentioned. That the retraction made by these persons after giving confessional statements is only and after thought and cannot be considered that statements given by these persons are not liable. Learned AR therefore, formally the defended the orders passed by the lower authorities. Learned AR made the Bench go through Para 14.2 and 14.4 of the O.I.A Dated 25.11.2008 passed by the first appellate authority. Regarding imposition of penalties, it was argu .....

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from the arguments made by the appellants that the statements recorded were retracted subsequently by way failing affidavits within a few days from the date of recording of these statements. The statement of Shri Dilip B. Waghela was recorded on 16.06.2005 and the statement of Shri Suresh Chandulal Shah was recorded on 18.07.2006. The same was respectively retracted on 18.06.2005 and 19.07.2006. Letters Dated 19.08.2005 & 31.08.2005 written by M/s L & T and M/s Jyoti Engineers & Cont .....

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idence on record showing any excess raw-material procured by the appellant and also any seizure of clandestine by removal of goods or any seizure of cash involved in these transactions of clandestine removals. No statements of Shri Sanjay V. Deora, Smt. Sneha S. Deora or Amit V. Shukla were recorded during investigation in order to ascertain the correct Customers and Sources of raw materials purchased etc. It is now a well understood principle that a case of clandestine activity cannot be establ .....

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are relevant and are reproduced below:- 4. Messrs. Saakeen Alloys Private Limited, which is engaged in the manufacture of CTD/Round bars, is situated at Visnagar-Mahesana Road, District Mehsana. On the premises of Messrs. Saakeen Alloys Private Limited and Messrs. Sunrise Enterprises, Mahesana simultaneous searches were carried out wherein three note-books and one pen-drive were recovered containing details of illicit clearances made by the said M/s. Saakeen Alloys Private Limited. On 24th Nove .....

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ain supplier of Messrs. Saakeen Alloys Private Limited. This statement too was retracted very soon. Likewise, statements of proprietor of M/s. Khodiyar Transport Service, Mahesana and Excise Manager of Messrs. Saakeen Alloys Private Limited were recorded and on the basis of pen-drive seized, panchnama and other documents were drawn. On the basis of entire material, show cause notice was issued by the Commissioner of Central Excise dated 7th October, 2010 demanding the duty amounting to ₹ 1 .....

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at in the case of clandestine removal of excisable goods, there needs to be positive evidences for establishing the evasion, though contended by the Revenue. In absence of any material reflecting the purchase of excessive raw material, shortage of finished goods, excess consumption of power like electricity, seizure of cash, etc., the Tribunal noted and held that there was nothing to bank upon except the bare confessional statements of the proprietor and of some of the persons connected with the .....

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