TMI Blog2007 (9) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... as been raised. The assessee-appellant has also been held liable for penal action for violations of Rule 9(1), 52A, 173F, 173C, 53 read with Rule 173G of the Central Excise Rules, 1944 (for brevity, 'the Rules'). Accordingly, a penalty of Rs. 59,79,963/- has been imposed under Rule 273Q of the Rules read with Section 11AC of the Act. Further the assessee-appellant has been ordered to pay interest on the duty demanded, under the provisions of Section 11AB of the Act. 2. The assessee-appellant has claimed that the following substantial questions of law would arise for determination of this Court :- (i) Whether any demand or penalty could be levied against the appellant in the absence of any evidence except the so-called diary maintained by an employee or the confessional statement of the proprietor of the recipient firm? (ii) Whether in the facts and circumstances of the case an opportunity to cross-examine the witnesses was required to be given to the appellant? (iii) Whether the so-called recovery from one Shri Ram Kumar is admissible piece of evidence in view of law laid down by Hon'ble the Supreme Court in the case of CBI v. V.C. Shukia [(1998)3 410]? (iv) Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods have come from Dirba in Trucks which are owned by Shivji Ram. On unloading the goods, a record use to be maintained in the form of slip in duplicate mentioning the date and the weight of the goods. One of the copies always use to be sent to the owner Shivji Ram. This witness conceded that whatever the goods were received at the godown from the factory, they are not accompanied by any excise invoice and also admitted that the godown was searched in the presence of independent witnesses. The officers had taken some documents in their custody. A panchnania was prepared and entrusted to him. He has also stated that the statement was made by him voluntarily and without any pressure. 6. On 1-11-1999, statement of Shri Shivji Ram, Proprietor of M/s. Jagdamba Steel Traders was also recorded under Section 14 of the Act, who also made certain admissions. Relevant extract of the statement of Shri Shivji Ram reads as under :- "…..I have been explained the provision of the said section fourteen and I have understood the same. I have to give true and correct statement and my statement can be used against me or any other person in any court of law. I am partner of M/s. Shiv Shakti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ?) of the pipes from the above factories/in general. We are showing that receipt of 9 to 10 black pipes, whereas the actual receipt is 2000 fourteen to fifteen Mt. The bill from the factories are received for 9 to 10 matric tonnes and the remaining quantity are being received without any in voice/bill A/c the No. 2 (unaccounted) sale proceed are kept in bank account No. 15463 at State Bank of Patiala, Model Basti, Karol Bagh, which is in the name of Balvir one of my employee A/c. The unacted slips are destroyed. The genuine turn over is about 1 to 1½ cores. Our company received two/three bill per day from the factory. The unaccounted sale proceeds are utilized in the purchase of strips iron in the manufacturing of black pipe. The strips are purchased from M/s. Gopal Steel Rolling Mills, Patiala Steel Rolling Milis and others. All are located at Mandi Gobindgarh (Punjab). xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx I undertake to pay the duty evaded by our M/s. Bhiwani Tubes (P) Limited and M/s. Shiv Shakti Steel Tubes. The above statement has been tendered vide without any pressure, threat and coercion, It is true and correct." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Jagdamba Steel Traders where he disclosed certain facts which were in his personal knowledge i.e. Bank account opened in the name of his employee Balbir. Balbir is getting only Rs, 2000/- per month and the deposits made at the time of opening of the Bank account, is more than 4 lakhs. We have gone through the retraction, which is only to the extent he was forced to write the statement. Shri Shivji Ram is a B.Com. and it cannot alleged that he is an illiterate man and succumbed to pressure of Revenue. He is a partner in manufacturing Unit and in the statement he disclosed certain facts, which were only in his knowledge. The disclosure made by Shivji Ram is further collaborated by Balbir his employee in whose name account is opened. It is also come on record that goods received at Jagdamba Steel Traders was being weighed at one Dharam Kanta and payment is being made by Shiv Shakti Tubes, the present appellant. It is also come on record that the goods were cleared by Jagdamba Steel Traders without any documents. Appellant relied upon the decision of the Tribunal in the case of Jagatpal Prem Chand Ltd v. Commissioner of Central Excise, Delhi (Supra). We find that the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 280 (S.C.) = (2000) 7 SCC 53. In that case, the Supreme Court was considering the question as to whether it was necessary to comply with the precautions envisaged by Section 164 of the Code of Criminal Procedure, 1973 when a Custom Officer record a statement under Section 108 of the Customs Act. In para 9 of the judgment, it has been noticed that Section 14 of the Act is practically the same as Section 108 of the Customs Act and, therefore, it has been observed that the decision rendered by the Supreme Court under the other corresponding provisions will be of much advantage to understand the scope of the provisions. After referring to the provisions of Section 164 of the Code of Criminal Procedure and the judgment of the Supreme Court in Haroom Haji Abdulla v. State of Maharashtra - 1999 (110) E.L.T. 309 (S.C.) = AIR 1968 SC 832, their Lordships observed as under : "We hold that a statement recorded by Customs Officers under Section 108 of the Customs Act is admissible in evidence. The Court has to test whether the inculpating portions were made voluntarily or whether it is vitiated on account of any of the premises envisaged in Section 24 of the Evidence Act. Such an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in V.C. Shukla's case (supra) has failed to impress us because in that the entries on the loose sheets of paper as against regularly maintained books of accounts were discarded on the grounds that those entries did not answer the requirements of Section 34 of the Evidence Act, 1872. It is thus obvious that the aforementioned judgment has no bearing on the question raised in the instant appeal. The Division Bench judgment in the case of Sunil Gupta (supra) would also not advance the case of the appellant inasmuch as the Division Bench of this Court has considered entirely a different question namely whether a Central Excise Officer is debarred from arresting a person without a warrant despite the fact that he has reasons to believe that such a person is liable to be punished under the Central Excise Act, 1944. Likewise, the judgment of the Supreme Court in C. Vasantlal and Company (supra) cannot also come to rescue of the appellant because in the present case Sh. Shivji Ram, who had made the admission could not himself claim that he should be subjected to his own cross-examination. Moreover, he has already made an attempt to resile from the statement made under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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