TMI Blog2018 (5) TMI 1670X X X X Extracts X X X X X X X X Extracts X X X X ..... reupon arrive at definitive and considered decision. No doubt, as the final fact finding authority, the Tribunal can rely upon the reasoning, findings or inferences given in the order-in- original there has to be also fresh and independent application of mind and not a mere reproduction and repetition even if the final conclusion is one of affirmation. In the present case, the impugned order on all aspects and contentions merely reproduces the order-in-original, without specifically and independently examining and dealing with diverse contentions. Reference and independent and exhaustive elucidation of the factual contentions raised by the appellants and consideration of legal issues based upon the said contentions is conspicuously lacking and missing. The impugned order suffers on this account. The impugned order fails to independently and specifically deal with and examine the contentions raised by the appellants. The aforesaid substantial questions of law are answered in favour of the appellants and against the respondent with an order of remand to the Tribunal for fresh decision. - CEAC No. 7/2018, CEAC No. 8/2018, CEAC No. 9/2018 - - - Dated:- 16-5-2018 - Sanjiv K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of K. N. Mehrotra was recorded on 29th February, 2008 and 7th March, 2008. Assertion and contention of the appellants is that these statements were recorded under extreme pressure and duress. It is stated that Purushottam Kumar Arya and K.N. Mehrotra had retracted their statement by way of bail applications moved on 8th March, 2008 and subsequently after release from custody vide communication dated 24th March, 2008. 6. The appellants have relied on several judgments in support of the contention that retracted statements cannot be accepted and considered as admission of guilt unless there are other circumstances and corroborative evidence. Reference was made to A. Tajudeen versus Union of India. (2015) 4 SCC 435, Commissioner versus Shakti Zarda Factory (I) (P) Limited 2015 (321) E.L.T. A210 (SC), Vishnu and Company Private limited and Others versus Commissioner of Central Excise, (2016) 332 E.L.T. 793 (Del), Rakesh Kumar Garg versus Commissioner of Central Excise. (2016) 331 E.L.T. 321 (Del), Department of Customs versus Joginder Pal Jain, (2014) SCC Online Del 4386 and Commissioner of Customs, Mumbai versus Food Centre Trading Company, (2008) 225 E.L.T. 193 (Bom). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantiated by any evidence except that they retracted their respective statements on 24.3.2008. I note that statements of Shri Arya and Shri Mehrotra were recorded on different dates and they took similar stand in their all statements. If the statements were recorded under threat or duress and the contents of the panchnama were not correct, they could have filed immediate retraction after ceasation of the said threat, duress and illegal confinement. I note that on 7.3.2008 at 12.30 hours when both the noticees appeared before the investigating officers in compliance of summons issued for their appearance in the case, they requested vide letter dated 7..3.2008 for adjournment to attend the summons after their attendance in Delhi District Court, Tis Hazari, Delhi in connection with family dispute matters scheduled at 14.00 hours on 7.3.2008, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made out against a person on the basis of the statement of accounts procured and produced by the third party from his premises like in the present case from the Noticees No. 4 and 5 and cited the case law of Rutvi Steel Alloys Vs. CCE, Rajkot - 2009 (243) ELT 154 (Tri.-Ahmd.) and CCE, Coombatore Vs. Rajaguru Spinning Mills (P) Ltd. - 2009 (243) ELT 280 (Tri.-Chennai) in their defence. As regards the decision of Hon'ble CESTAT in the Rutvi Steel, I note that the instant case is entirely different from the said case as in the cited case, it was held that third party diary entries and sole statement of their employee is not sufficient as a proof of clandestine removal, whereas in this case the incriminating documents were recovered under proper panchnama signed by competent witnesses, the entries in the documents were explained by the buyer of the 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecuting, official could be viewed with suspicion and they have enormous evidentiary value and conviction could be based on the evidence of such confession statement alone as before the custom officer. In K.I Pavunny Vs. Asstt. Collector (Head Quarter), Cochin 1997 (90) ELT 241 (SC), it has been reiterated holding that appellant when gave confessional statement under Section 108 of the Customs Act was not a person accused of a offence. It is further contemplated that 'the appellant while giving statement under Section 108 of the Customs Act, was bound to speak the truth with the added risk of being prosecuted if he gave false evidence.' Held further that 'the officer exercising powers under the Customs Act is an authority within the meaning of Section 24 of Evidence Act.' It was further held in the same judgement that 'the confession statement influenced by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri K.N. Mehrotra cannot succeed. In this regard, the impugned order on page 39 has observed as under I find that the records resumed by the department from the premises of the M/s RM, the ownership of which was never denied by M/s RM and details of the entries made therein were thoroughly explained by Shri Suresh Kumar Garg, the representative of M/s RM in his three consecutive statements, with respect to receipt of the excisable goods without bills and payment of cash against receipt of these goods from M/s PZFC. The entries were also explained by Shri P.K. Arya and Shri K.N. Mehrotra of M/s PZFC and the issue of clandestine clearance of excisable goods without bills and without payment of Central Excise duty to M/s RM and receipt of cash against such sales were admitted by them in their three consecutive statements. Except the defence of retraction filed by Shri Arya and Shri Mehrotra, that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibutor's premises i.e. M/s. Moby Enterprises. Further, the statement of their distributor Shri G.S. Advani also corroborates the department's stand of clandestine clearances of goods by M/s. Tanna Electronics. In the said statement, Shri G.S. Advani has clearly deposed and clarified the same modus operandi adopted for clandestine clearances of the goods which was disclosed by Shri M.M. Tanna in his statement. Further, the other partner Shri Ashok Tanna has also corroborated the version of Shri M.M. Tanna. As such, it is seen that there is enough evidence on record to sustain the charge of clandestine removal against the appellants. The precedent decisions referred to by the Id. Advocate do not advance the appellant's case inasmuch as in the case of clandestine removal, the appreciation of the evidence available on records of that particular case leads to the findings. It is the cumulative effect of the entire 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 vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that if there is independent evidence, besides the confession, the rule that the confession could be used only to corroborate the other evidences loses its efficacy. Therefore, it was held that if the retracted confession is believed to be voluntary and true, it may form the basis of a conviction but the rule of practice and prudence requires that it should be corroborated by independent evidence. Therein also, for the charges of capital offence, the trial Court did not accept the confessional statement of co-accused containing inculpatory and self- exculpatory statement. The High Court reversed the acquittal and convicted the accused, accepting that part of the confessional statement of the accused which was corroborated from other evidence. This Court upheld the conviction and held that it is not necessary that each item of fact or circumstance mentioned in the confessional statement requires to be corroborated separately and independently. It would be sufficient if there is general corroboration. The ratio in Kashmira Singh's case was referred to. 8. The Tribunal is the final fact finding authority under the Act i.e. the Central Excise Act, 1940. As a final fact fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wered in favour of the appellants and against the respondent with an order of remand to the Tribunal for fresh decision. However, we clarify that we have not commented on merits or made any observation either in favour of the appellants or the respondent. The matter would be re-heard and decided a fresh on merits without being influenced by the impugned order. 12. We may note that the appellant-Prabhat Zarda Factory Company has already deposited the entire amount of excise duty and penalty under protest. As far as appellants- Purushottam Kumar Arya and K.N. Mehrotra are concerned, counsel for the appellants has stated that they would be depositing 50% of the penalty amount of ₹ 40,00,000/- and ₹ 5,00,000/- imposed on Purushottam Kumar Arya and K.N. Mehrotra, i.e. ₹ 20,00,000/- and ₹ 2,50,000/-, respectively. The said deposits in terms of the said statement would be made within six weeks from today. The said deposits would be treated as pre-deposit made in terms of Section 35F of the Central Excise Act. We may note that in the present case, appeals were preferred before the amendment to Section 35F with effect from 6th August, 2014. We clarify that this or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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