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RDB Industries Ltd & Another Versus The Commissioner of Central Excise, Kolkata-II & Others

2016 (10) TMI 306 - CALCUTTA HIGH COURT

Evasion of excise duty - Validity of adjudication order - violation of principles of natural justice - documents which have been relied upon by the department in the adjudicating process were not made available to the petitioner despite requests thereof being made - adjudicating authority has placed reliance on the evidence of the co-accused who is an accomplice - deponent was not allowed to be cross-examined - Held that:- the forensic report is discussed in the writ petition. It relates to forg .....

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pectus of the facts and the documents that were taken into consideration by the adjudicating authority. - Period of limitation - Held that:- the impugned order finds that, the petitioner is guilty of suppressing documents during investigation and evasion of payment of appropriate duty on excisable goods. Nothing in Section 11A of the Central Excise Act permits the Court to come to a different finding, in conspectus of the facts of the present case, that the claim of the department is barred .....

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t there is no allegation of omission ipso facto does not absolve the petitioner from a charge of evasion of duty. - Decided against the petitioner - WP No. 584 of 2008 - Dated:- 29-9-2016 - Debangsu Basak, J. Mr. Bhaskar Sen, Sr. Adv. Mr. Joydeep Kar, Sr.Adv. Mr. A. Banerjee, Sr. Adv. Mr. I. Roy, Adv. Mr. S. Banerjee, Adv. Mr. D. Choudhury, Adv. Mr. S. Choudhury, Adv. for the petitioners Mr. R.N. Das, Sr. Adv. Ms. Aishwarya Rajyashree, Adv. for the respondents ORDER The Court : The petitioner ha .....

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ns were issued by the Writ Court with regard to the documents concerned. He has referred to the impugned order where the adjudicating authority has relied upon the evidences given by co-accused. He has submitted that such deponent was not allowed to be cross-examined. He has relied upon 2015 (322) E.L.T. 462 (Cal.) (Soumendu Saha vs. Union of India), All India Reporter 1952 SC 159 (Kashmira Singh vs. State of Madhya Pradesh) and (2008) 16 Supreme Court Cases 537 (Vinod Solanki vs. Union of India .....

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tioner has submitted that, the claim made by the department in the show cause notice is barred under the provisions thereof. Learned senior Advocate for the petitioner has contended that, the Excise department has posted personnel at the factory of the petitioner on round the clock basis. He has referred to the attendance register of such personnel. He has contended that there is no allegation of collusion between the petitioner and such personnel of the department. Therefore there is no questio .....

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4. The petitioner was informed of the impugned order by a letter dated January 29, 2008. Such letter contains the statement that the impugned order is appealable. Despite a statutory appeal being available to the petitioner, it has chosen to move the writ jurisdiction. A Writ Court is not an appellate authority. A Writ Court is not called upon to reappraise the entire evidence to come to a finding of validity or lack of its impugned order. The scope of enquiry of a Writ Court with regard to a de .....

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t case the challenge levelled against the impugned order is the allegation of violation of the principles of natural justice. On the violation of principles of natural justice three areas have been identified by the petitioner. The first area is that documents which have been relied upon by the department in the adjudicating process were not made available to the petitioner despite requests thereof being made. True the petitioner had written letters to the department seeking the documents which .....

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te of such knowledge the petitioner did not take any steps for the purpose of enforcing the production thereof from the third parties with whom they were available. It is not the case of the petitioner that, the process of making the third parties produce the relevant documents were not available in law. Therefore it would not lie in the mouth of the petitioner to contend that, the documents sought to be relied upon were not made over to the petitioner and therefore there is a breach of principl .....

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f using the testimony of one accomplice to corroborate another has repeatedly been pointed out. It has prescribed caution in relying upon the evidence of a co-accused. Vinod Solanki (supra) is a case relating to violation of Foreign Exchange Regulation Act, 1973 in a scenario where a confession which was recorded by force, coercion and threat was sought to be retracted. In the present case the impugned order is detailed. It has taken into consideration various aspects of the case including the d .....

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ce and godown of the petitioner s C & F agent and at other places. During Investigation the DGAE had unearthed a hidden godown at a distance of 50 metres of the officially declared godown. Excusable goods of a value of ₹ 62,24,469/- was recovered therefrom. That apart excisable goods of other value and unaccounted cash were also recovered. Documents were seized. The department is of the view that the petitioner is guilty of planned evasion of duty of ₹ 24,32,35,320/- during the p .....

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u Saha (supra) it has been held, that when the prosecutor had furnished a report from an expert and did not make over the copy of the same to the assessee, it visits the proceeding with procedural illegality. In the present case the forensic report is discussed in page 603 of the writ petition. It relates to forgery of the invoices. The department had referred to the copies of the official invoices and copies of the forged invoices to the Government Examiner of Questioned Documents, Directorate .....

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