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TMI Blog2018 (5) TMI 1670X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts and law as raised and had arisen for consideration? (ii) Whether the findings recorded by the Customs, Excise and Service Tax Appellate Tribunal are perverse as they do not meet the mandate and requirement of law?" 3. After hearing counsel for the parties, we feel that we are not required to go into details and merits of factual disputes as we find that an order to remit is required to be passed for fresh adjudication by the Tribunal. 4. Suffice it would be to notice that search operations were undertaken in the premises of M/s. Rudraksha Marketing on 28th February, 2008 and statements of the sole proprietor Suresh Kumar Garg and his brother Pawan Kumar Garg were recorded. It is a case of the Revenue that the said statements implicate the present appellants as involved in clandestine manufacture and removal of tobacco/gutkha without payment of central excise duty and education cess. 5. Factory premises of Prabhat Zarda Factory, the appellant in CEAC No.7/2018, were thereafter subjected to search on 11th March, 2008. Appellants claim and assert that no incriminating material, documents or goods were found. Appellant-Purushottam Kumar Arya, a partner of Prabhat Zarda Fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int out of the ledger account of the appellant No. 1 PZFC), from the premises of M/s R.M., who are also one of the beneficiaries of the alleged evasion of duty of Central Excise of the assessee M/s PFZC. In this regard, ..the impugned order on pages 35-36 has observed as under : "On perusal of the statements tendered by Shri Arya and Shri Mehrotra recorded under Section 14 of Central Excise Act, 1944. I note that Shri Arya tendered his statements on three different dates viz. 29.2.2008, 1.3.2008 and 7.3.2008 and Shri Mehrotra tendered his statement on 29.2.2008 and 7.3.2008 before the proper Central Excise officers. The material details and nature thereof such as pricing policy and discount structure, details of partners, relation with buyers, arrangement of transportation, purchase of raw materials on bills as well as without bills, clearance of goods on bills as well as without bills etc. given by Shri P.K. Arya and Sh. Mehrotra are almost identical to the revelation made by Shri Suresh Kumar Garg under his voluntary statements recorded on 28.2.2008, 29.2.2008 and 3.3.2008. Such minute details do not seem to have been extracted from an unwilling/non-voluntary person. Both the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only the statements of Shri Arya and Shri Mehrotra which are the only evidence on record. Disclosure of the modus operandi adopted and internal business/pricing policy followed by M/s PZFC, in the respective statements stood corroborated by the recovery of documents/statements of accounts, speaking in loud and clear terms the amount received by M/s PZFC against the sale of goods on bills as well as without bills, removal of goods on payment of Central Excise duty as well as without payment of Central Excise duty. Further the statements of Shri Garg, the buyer of the excisable goods (cleared without payment of duty), who also is one of the beneficiaries of the scheme hatched and executed by them for evasion of Central Excise duty, also corroborated the charge of clandestine removal of goods, against M/s PZFC by providing the print outs of the ledger account of Noticee No. 1 containing the details of goods cleared under cover of bills as well as without cover of any bills." 11.1 It is on record that the incriminating documents were recovered under the proper panchnama signed by the independent witnesses and the entries in the documents were explained by the buyer of the excisa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record do not prove so. These appellants are not able to prove that their said statements were not voluntary, and they were recorded under threat and duress. The retractions made later after considerable time. From the circumstances, it appear an afterthought as to avoid consequences of their commissions and omissions under which they are liable for action under the law of Central Excise. On this issue, the impugned order on pages 37-38 observes as under: "Coming to the retraction of the statements recorded under Section 14 of Central Excise Act, 1944 by Shri P.K. Arya and Shri K.N. Mehrotra vide their letter dated 24.3.2008, I note that the Counsel have heavily relied upon it. Further the counsel also challenged the admissibility and evidentiary value of these statements under Section 25 & 26 of the Indian Evidence Act, 1872. However, I find that the confession once made by the person before the proper Central Excise officer has to be viewed with enormous evidentiary value. In Assistant Collector of Customs, Madras-I Vs. Govindswamy Raghupathy - 1998 (98) ELT 50 (Mad.), the Hon'ble High Court has held that it is only confession made before the police or in custody in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to prove the allegation of threat, coercion and illegal confinement by the departmental officers. The Noticee No. 1 has been engaged in the manufacturing for a longer period and their Manager, Shri K.N. Mehrotra, well conversant with the procedures of Central Excise would be fully aware of the consequences of confessional statements and that's why as an afterthought the Noticees 2 and 3 had retracted the same. However, mere retraction of confessions is not sufficient to make the statement irrelevant. In Vinod Solanki Vs. UOI - 2009 (233) ELT 157 (SC), it was held that if confession is retracted, it must be corroborated by other independent and cogent evidences. In 'Surjeet Singh Chhabra Vs. UOI - 1997 (89) 157 (SC) it was held that a confession made before Custom officer was held binding even if retracted later." 11.3 In respect of the record resumed during search of the premises of the appellant M/s R.M., it is evident that the goods had been cleared by the assessee M/s PZFC without bills and without payment of duty, and against the said goods, payment was received in cash. The entries of the record resumed was corroborated voluntarily by the partner Shri Purushottam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,42,93,687/-. I therefore find that M/s PZFC have removed excisable goods valued that Rs. 2,10,26,312/- (MRP Rs. 4,20,52,623/-_ without payment of Central Excise duty amounting to Rs. 1,42,93,687/- to M/s RM without maintaining the statutory records meant for the purpose and without furnishing correct information to the department in ER-1 returns furnished on monthly basis." (Emphasis supplied) 12. In view of the above discussion, we fully agree with the finding of the impugned order where it was observed that present appellants have no defence against the case made out against them. The case laws mentioned by the appellants are not applicable in the present facts. The same are distinguishable on facts and circumstances. 12.1 The Tribunal in the case of Tanna Electronics (supra) has observed that the case where the voluntary deposit of duty has been made by the assessee, the said fact also reflects upon the fact of acceptance of clandestine activities on the part of the assessee. The Tribunal in the said case observes as under: "8. We, however, do not find any merit in the above contention of the Id. Advocate. It is not only the statement of Shri M.M. Tanna which is the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m other evidences made available by prosecution and a general corroboration would suffice, and not for each detail contained in.the confessional statement. The Hon'ble Supreme Court in the said case inter alio observes as under: "21. In Kashmira Singh's case the co-accused, Gurcharan Singh made a confession. The question arose whether the confession could be relied upon to prove the prosecution case against the appellant Kashmira Singh. In that context, Bose, J. speaking for Bench of three-Judges laid down the law that the Court requires to marshall the evidence against the accused excluding the confession altogether from consideration. If the evidence de hors the confession proves the guilt of the appellant, the confession of the co-accused could be used to corroborate the prosecution case to lend assurance to the Court to convict the appellant. The Court considered the evidence led by the prosecution, de hors the confession of co-accused and held that the evidence was not sufficient to bring home the guilt of appellant Kashmira Singh of the charge of murder. The appellant was acquitted of an offence under Section 302 IPC but was convicted for the offence under Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onspicuously lacking and missing. The impugned order suffers on this account. Supreme Court in Kranti Associates Pvt. Ltd and Others. Vs. Masood Ahmed Khan and Others, 2011 (273) E.L.T. 345 (SC), had examined and elucidated on importance and significance of reasoned and speaking order by quasi judicial authorities. In the said case, National Consumer Redressal Commission, it was observed, has trappings of civil court and was a high-powered quasi-judicial forum for deciding lis between the parties. Quoting case law on the subject dealing with the question of recording of reasons and thorough and independent application of mind in support of the conclusions by any quasi-judicial authority, it was held as under:- "47. Summarising the above discussion, this Court holds: (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process". 9. We do not think that the impugned order meets the mandate and legal requirements set out in the aforesaid summarization made by the Supreme Court in Kranti Associates Pvt. Ltd. (supra). The impugned order, even if assuming the conclusion was justified, would faulter on the said account. Reference, in this regard, can be also made to the decision of the Delhi High Court in Rakesh Arora Vs. Commissioner of Customs, 2012 (276) E.L.T. 181 (Del.) and Nitesh Kumar Kedia Vs. Commissioner of Customs, Import & General, 2012 (284) E.L.T. 321 (Del.). 10. In these circumstances, we would hold that the impugned order fails to independently and specifically deal with and examine the contentions raised by the appellants. It fails to meet the parameters re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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