TMI Blog2017 (4) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... evidences corroborating the fact that the appellant M/s RM was an active partner along with Shri Suresh Kumar Garg, who is authorized signatory of M/s R.M. in evasion of duty of Central Excise by the assessee M/s PZFC along with assessee’s partner (Shri P.K. Arya) and Manager (Shri K.N. Mehrotra), there cannot be two opinion that the penalties imposed on both of them namely M/s R.M. and Shri Suresh Kumar Garg deserve to be sustained - the charges and penalties imposed by the impugned order against the appellants, M/s R.M. and Shri Suresh Kumar Garg stand sustained. Appeal dismissed - decided against appellant. - Appeal No. E/1291-1293/2010 -DB & 1791-1792/2010 - Final Order No. 52944-52948/2017 - Dated:- 20-4-2017 - Hon ble Mr. Justice (Dr.) Satish Chandra, President And Hon ble Mr. Ashok K. Arya, Member (Technical) Shri A.K. Trivedi, Sr. Advocate - for the appellant Shri Kumar Vikram, Advocate (for 1791-1792) Shri H.C. Saini, D.R. - for the respondent ORDER Per Ashok K. Arya The present appeals have been filed by the appellants against the Order-in-Original No. 2/2010 dated 26.2.2010. The disputed period is 2005-2008. 2. The brief facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons have taken over as partner in the firm and are still working and doing the business. 6. After giving brief description of the family, the ld. Counsel submits that M/s R.M. was the trader and stockist of the appellant assessee. He submits that Shri Purushottam Kumar Arya noticee No. 2 and Shri K.N. Mehrotra, Noticee No. 3 who is the Manager of M/s Prabhat Zarda Factory (Co.), were arrested by the department on 7.3.2008 after making the duty payment of ₹ 1.75 crores, they were assured to be released but they were not released and sent to the judicial custody. They were released on bail only on 20.3. 2008. He further submits that on the next date i.e. on 21.3.2008 they were in depression and next two days (22.3.2008 and 23.3.2008) were holiday of Holi festival clubbed with Sunday. They had retracted their statements on 24.3.2008 by submitting a letter saying that the earlier statements were obtained under threat, inducement and duress. He also submits that in the bail applications dated 8.3.2008 and 12.3.2008, same retraction was mentioned. It is the submission of the ld. Counsel that no goods were sold without payment of the duty and later, goods seized were released as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mysore 1978 (2) ELT 323 (SC). (iv) KI Pavunny Vs. Asstt. Cochin 1997 (90) ELT 241 (SC). (v) Tanna Electronics Vs. CCE, - 2005 (186) ELT 312 (Tri.-Mumbai) 9. We have heard both the sides at length and gone through the material available on record. 10. From the evidence, it appears that there is not sufficient force in the submissions of ld. Counsel made on behalf of the appellant assessee M/s PZFC, Shri Purushottam Kumar Arya and Manager Shri K.N. Mehrotra. Shri Purushottam Kumar Arya of M/s PZFC and Shri K.N. Mehrotra in their statements recorded on different dates corroborate what has been stated by Shri Suresh Kumar Garg, authorized representative of M/s R.M., who were the distributor and stockist for the appellant assessee M/s PZFC. 11. The ld. Counsel s submission on behalf of the PZFC, Shri Purushottam Kumar Arya, partner and Shri M.N. Mehrotra that there is no independent corroboration for the statements made by Shri Suresh Kumar Garg, authorized signatory of M/s R.M., is not based on facts on record. There is corroboration in the form of statements made by Shri Purushottam Kumar Arya and Shri K.N. Mehrotra, Manager. Further, there has been seizure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was acceded to and accordingly they appeared in the evening hours of 7.3.2008, when their statements were recorded separately. This shows they were not confined to the office during the recording of their statements between 29.2.2008 to 7.3.2008. Further between 29.2.2008 to 7.3.2008, the day they were arrested and from 8.3.2008 to 20.3.208, the day they were released on bail by the Court, they had ample opportunity and forum to produce evidence for charges of threat, duress and illegal confinement, but they did not produce any such evidence to buttress their allegation. I also don t find any substance in noticees submissions that there is no independent corroboration of the statements made by them under Section 14 of CEA, 1944. The statements made by Shri Arya and Shri Mehrotra were corroborating the reasonable belief entertained by the officer of the department arising out of confessional and inculpable statements of Shri Suresh Kumar Garg and seizure of incriminating documents/statements of account which are in fact the print out of the ledger account of Noticee No. 1 from the premises M/s R.M. which were also one of the beneficiaries of the alleged evasion of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e excisable goods in his voluntary admittal/statements recorded on different dates and same was further admitted by the suppliers of the excisable goods as well as their Manager in their voluntary statements recorded on different dates. The decision in the case of Rajaguru Spinning Mills in this respect is also not applicable as in that case the day book showing realisation of higher amounts were allegedly seized from the premises of the assessee who denied its ownership in the first place and did not reveal any intricate information with respect to the documents seized. Whereas in the instant case, the ownership of the documents seized was never denied, rather the details of account were explained and admitted by the owner of the records, i.e. M/s R.M. through the authorised signatory Shri Suresh Kumar Garg as well as the supplier of the goods i.e. Shri P.K. Arya and Shri K.N. Mehrotra, who also confirmed that the same were supplied without payment of Central Excise duty and admitted Central Excise duty liability in respect of clandestine removal of excisable goods. 11.2 The appellant assessee, their partner, Shri Arya; and Manager, Shri K.N. Mehrotra also argue that their st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y threat, duress or inducement etc. and is true one. Confession when retracted has to be tested under Section 24-30 of the Evidence Act- burden is on the accused to prove that the confession was made under threat and only if accused is able to prove that it was not voluntary then the onus shifts to prove that it was made voluntary. It was further held that the burden to prove that it was not voluntarily given by the accused but has been made to the dictation of the prosecuting officials is heavily on the accused to prove with regard to which there is not a single attempt made on the part of the accused and hence the version of the prosecution has to be relied upon in toto . The counsel s contention that the statements were recorded under threat, duress, coercion and illegal confinement has not been substantiated by any evidence except the retraction of the noticees given after more than three weeks of recording the first statement. The counsel failed to prove the allegation of threat, coercion and illegal confinement by the Central Excise officers during the recording of the statements. Moreover, I could not find even a single attempt on the part of the counsel in his written a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... too after three weeks of their first statement, the counsel failed to adduce any evidence to prove that the records resumed under the panchnama are not admissible pieces of evidence. I know that the statements of account resumed under panchnama drawn on spot by the Central Excise officer in the presence of independent witnesses are reliable and admissible as evidence. As regards cash payments made to M/s PZFC by M/s RM in the entries of the files seized, with respect to the excisable goods removed from the factory premises M/s PZFC and sold to M/s RM, I find that the Noticees No, 2 and 3 have admitted the same and the department has been able to establish the charge of clandestine clearances of excisable goods without payment of excise duties against the Noticee No. 1 to 3 and receipt of said goods without payment of duty in a fraudulent manner by Noticees No. 4 and 5 by producing these records as evidence, recording the voluntary statements of owner of the records and also by the partner and the manager of M/s PZFC and the representative of Noticee No. 4, wherein all have admitted the non payment of Central Excise duty on the excisable goods valued at ₹ 2,10,26,312/- involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire evidence, which is made the basis for arriving at the finding of the clandestine removal. In the instant case, we are satisfied that there exists sufficient evidence to sustain the said finding against the appellants. It is also seen that the appellants had voluntarily deposited duty amount immediately after the search and seizure which also reflects upon the fact of acceptance of clandestine activities on the part of the appellants, though strictly speaking same cannot be made the sole basis for arriving at a conclusion against the appellants . It is made clear that the mere voluntary deposition of duty may not be the sole basis for arriving at the conclusion against the assessee. In this case however there is sufficient corroboration evidence on record, which prove the case of evasion of duty of Excise against the assessee and other appellants. 12.2 Hon ble Supreme Court in the case of K.I. Pavuny (supra) has observed that the inculpatory portion of retracted confession, if found to be voluntary and truthful could be relied upon to base conviction. The Hon ble Supreme Court in the said case further observes that prudence and practice require prosecution to give assuran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly. It would be sufficient if there is general corroboration. The ratio in Kashmira Singh s case was referred to. 13. In the light of the above discussions and by considering the totality of the peculiar facts and circumstances, we are in full agreement with the impugned order that the submissions of the assessee appellants and their partner (Shri P.K. Arya) and the Manager (Shri K.N. Mehrotra), do not have sufficient force vis-a-vis the charges made against them in these proceedings. Therefore, the charges against them in present proceedings stand proved beyond reasonable doubt. Consequently, the impugned order is sustained along with the reasons mentioned therein, and their appeals are dismissed being without merits. 14. The ld. Counsel for the appellant viz. M/s R.M. and Suresh Kumar Garg submitted that penalty cannot be imposed on the firm as they are not a natural person and further says that there is no specific allegation against Shri Suresh Kumar Garg. The Hon ble Supreme Court in the case of Agarwal Trading Corporation and Others Vs. Assistant Collector of Customs, Calcutta and Others 1983 (13) ELT 1467 (SC) has held that a firm or other association of individua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinct legal entity or legal personality. For their individual and collective actions they would themselves be liable jointly and severally in their partnership pursuits. When they constitute a partnership firm and adopt a firm name for their business, such firm name is not a name of any different and distinct juristic personality but only a convenient collective description of such body of individuals. It is the law alone that can create or recognize a juristic personality distinct from the constituent individuals as in the case of companies. Therefore, merely because definition of person would include more than one person as a body of individuals, there is no automatic birth of a juristic person unless specifically so recognized by law. 14.2 Following the above observations of Hon ble Supreme Court (supra) and the CESTAT (supra), when there are enough evidences corroborating the fact that the appellant M/s RM was an active partner along with Shri Suresh Kumar Garg, who is authorized signatory of M/s R.M. in evasion of duty of Central Excise by the assessee M/s PZFC along with assessee s partner (Shri P.K. Arya) and Manager (Shri K.N. Mehrotra), there cannot be two opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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