TMI Blog2018 (5) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... proper Panchnama - it is clear that the data in the electronic devices were in relation to the transactions undertaken by the appellant and for such transactions, no evidence of excise duty payment have been produced by the appellant. Retracted statements - Held that: - It is a settled position of law that the original statement does not become null and void only because it has been retracted on a subsequent date. Such retraction is to be assessed by the adjudicating authority in the light of the circumstances of the case and the existence of corroborated evidence - In the present case, we note that Shri Mukhtiar Singh has gone against his original statement, several years after the initial admission. Likewise, the buyers retracting such statements at the time of cross examination by itself will not make their statement inadmissible. Such retraction especially when supported by other evidences is to be ignored. The allegation of clandestine manufacture and clearance and evasion of duty stands established - confiscation upheld - appeal dismissed - decided against appellant. - Appeal No. E/51175,51475,51477,51478,51479,51480,51481,51495,51496,51476/ 2017-EX(DB) - Final Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through their dealers. Such goods were being sold under sale bills and delivery challans. Shri Mukhtiar Singh failed to appear before the Departmental Officers on subsequent dates even though summons were issued for his appearance on several different dates. 5. The statement of Shri Amarpreet Singh, authorized signatory of GHI, appeared before the Departmental Officers on 16.04.2013 under the authorization of Shri Mukhtiar Singh and his statement was recorded. He admitted in his statement that GHI was engaged in the manufacture of door closers bearing different brand names out of which for Doorwell ` they had applied for allotting the brand name. No other brand names belonged to them. 6. Shri Mukhtiar Singh, prop. was summoned for being present to witness the opening of the recovered hard disk and to print-out the data contained therein, but he chose not to appear. Finally on 27.08.2013, in the presence of two independent witnesses and under panchnama proceedings, data from the hard disk was retrieved by a computer expert. Both the deleted data as well as readable data of the said hard disk was printed-out. Such data included the details as below: a) Challans issued in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d are being disposed-of through this common order. 11. On behalf of all the appellants, we heard Shri Vinee Kumar, Advocate. Revenue was represented by Shri R.K. Mishra, DR. 12. Submissions made on behalf of the appellants: i) It was submitted that the appellant, namely, M/s Guruharkishan Industries (GHI) was only a distributor of M/s Guru Harkishan Mechanical Works (GHMW). GHI is situated at WZ-424 whereas the premises at 422-423 belong to M/s GHMW. It is submitted that the door closers were manufactured by GHMW and GHI has acted only as a distributor for the NCR territory since 2011. In this connection, he filed an affidavit by Shri Nirmal Singh prop. of GHMW. II) He submitted a copy of electricity bill dated 18.12.2012 for the premises at WZ 422-423 and submitted that such connection is Industrial Type and from the number of units consumed, it can be seen that manufacture was done by GHMW. On the other hand, he submitted that the electricity connection for premises of 424 was a domestic connection indicating very few units consumed. He also submitted a copy of the Income Tax Return and Balance Sheet of Shri Nirmal Singh for the period ending 31st March, 2012 indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Hence, he submitted that the validity of the data retrieved from the seized hard disks cannot be questioned. iii) The data printed-out from the hard disk tallied with the physical copies of the challans resumed from the factory during search. Further, most of the buyers have also admitted receipt of the clandestinely cleared goods, by identifying the challans bearing their name. He submitted that this corroborates data retrieved from the hard disk drives. iv) Regarding the retraction of statements by some witnesses at the time of cross-examination before the adjudicating authority, he submitted that such retraction alone will not render the evidence of the original statements as null and void, as has been held by the Tribunal in the case of M/s MM Industries vide Excise Appeal No.51686-51687/2017. v) He submitted that the affidavit dated 08.05.2018 filed by Shri Nirmal Singh to the effect that GHI was their sole distributor is nothing but a belated attempt to save his brother Shri Mukhtiar Singh from the tax net. No credence should be given to such an affidavit. Finally, he submitted that the impugned order may be upheld. 14. In the re-joinder, the ld Advocate submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined. Consequently, we are of the view that such data is to be considered, as admissible evidence, in the case. 18. The adjudicating authority has analyzed and discussed the data printed-out from the electronic devices, in detail, on the impugned order. It is seen that the details of the challans, so retrieved, tallied with the physical copies of the challans resumed from the factory during such operation. Further, it is seen that various details of the goods delivered to different buyers, such as, challan number, name of the party, data, description, quantity, etc. were found in the soft copy. These details were found to tally with the record physically resumed. Many of the buyers, whose statements were recorded, also confirmed the receipt of the goods. In view of above, it is clear that the data in the electronic devices were in relation to the transactions undertaken by the appellant and for such transactions, no evidence of excise duty payment have been produced by the appellant. 19. The second main ground is regarding the retracted statements. Shri Mukhtiar Singh, prop., in his initial statement dated 17.12.2012, admitted to the manufacture of various types of door c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is effect, an affidavit of Shri Nirmal Singh, prop. of GHMW, has been submitted during the course of hearing of the appeal along with a copy of the electricity bill for premises at 422 423 claiming that this was industrial connection. Such claim has never been made before the investigating or adjudicating authorities. Such claim also merits to be ignored since it appears to be only an attempt made belatedly at the time of the appeal before this Tribunal. The Panchnama, at the time of search on 21.11.2012, records that the premises situated at 422-423 and 424 were all connected together at the back side and all the machines required for manufacture were found in the building comprising all the three plot numbers. The front portion of 424 has been made to appear as the office of GHI whereas in reality the factory premises situated over all the three plot numbers has been used for manufacture. On the basis of the documents recovered and the statements recorded, it leaves very little scope for doubt that such manufacture has been done by GHI. 23. In view of the above detailed discussions, we are led to the inescapable conclusion that the allegation of clandestine manufacture an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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