TMI Blog2018 (6) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... s who made statements were examined by the adjudicating authority or cross examined. The department cannot prove with mathematical accuracy in the case of clandestine removal, the entire process of manufacture and sale. However, in this case, the main pieces of evidence of clandestine removal are the private register maintained by manufacturing chemist and the statements of the concerned persons. All those persons who were examined before the adjudicating authority have retracted their statements and the manufacturing chemist denied his own diary reflected the actual production. Appeal dismissed - decided against Revenue. - Appeal No. E/674/2009 - Final Order No. A/30628/2018 - Dated:- 6-6-2018 - Hon ble Mr. M.V. Ravindran, Member (Judicial) And Hon ble Mr. P.V. Subba Rao, Member (Technical) Shri Arun Kumar, Dy. Commissioner/AR for the Appellant None for the Respondent ORDER [ Order Per : P. Venkata Subba Rao ] 1. This is the departmental appeal against the Order-in-Appeal passed by Commissioner (Appeals) setting aside the Order-in-Original. 2. The respondents in this case are manufacturers of P or P medicaments falling under chapter 30 of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present order, the Commissioner (Appeals) has agreed with the decision given by his predecessor on limitation. Having agreed on this, prima-facie, the Commissioner (Appeals) agrees that the case is sustained. Thereafter, the Commissioner (Appeals) set aside the Order-in-Original with the findings that the impugned order is weak and the department has not been able to come up with conclusion to the alleged clandestine production/clearances by the appellants. The stand taken by the Commissioner (Appeals) in the second instance is contradictory to the view taken in the first instance (agreeing that the case is not hit by limitation of time). (b) As held in the case of Commissioner of Central Excise, Surat-I vs. Umiya Chem Industries [2005(185) E.L.T. 10 (Tri.-Mumbai)], the incriminating documents found from appellant s premises must be presumed to be true as per Section 36A of Central Excise Act, 1944. (c) In any type of clandestine activity, the person tries not to leave any evidence and they cannot be expected to faithfully put the details of all such clearances and in some register and append their signatures; hence clandestine activity can never be established by circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect, affirmative and positive evidence and not on mere surmises, as held by the Tribunal in the case of RA Castings vs. CCE, Meerut UI [2009(237)ELT 674)]. (iii) The adjudicating authority has explained that there is no evidence of clandestine clearance by recording the mere fact of nonmaintenance of this record points the needle of suspicion towards them and points out an inconsistency which has arisen due to non-maintenance/improper maintenance of records by them and the fact that investigation has taken pains to get the details authenticated is brought out in the number of times, Mr. Phanisekhar, Mr. Nagi Reddy and other were called to compare, correlate, explain and confirm the details as narrated in the show cause notice. 7. We have perused the records of the case and heard Ld. DR. We agree with Ld. DR that there is a contradiction in the order of Commissioner (Appeals) in first stating that there is a case to invoke extended period of limitation and then stating that ther is no case on merits. Section 11A deals with recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. Once the liability to recovery is decided on merits, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding giving statements under duress . I do not agree with this contention of the lower authority. At the time of cross examination, the individuals concerned should have been confronted with all the evidence available on record to elicit the correct facts which would have called their bluff, if it was really so. While the Appellants have taken the plea that the inconsistencies between production vis a vis clearances is due to the improper maintenance of records by them, the lower authority has held that Further, as manufacturer of P or P medicaments (affecting public health) it is the legal and moral responsibility of DRL to maintain a proper account of production. The mere fact of non-maintenance of this record points the needle of suspicion towards them. She has further observed that DRL have not come out with details of full production record . Thus, the lower authority has conveniently shifted the onus onto the Appellants to come out with details of production record failing which it is presumed that they had resorted to clandestine manufacture/clearance. The burden is on the investigation to come up with irrefutable evidence about such clandestine activities and not o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a court, as they apply in relation to a proceeding before a court. 10. As can be seen above, the statements given before the Central Excise Officers of Gazetted Rank is relevant for the purpose of proving in any prosecution for offence under the Act (a) when the person is dead or cannot be found or (b) when the person who made the statement is examined as a witness in the case before the court and the court is of the opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. The same rule applies to any proceedings other than before a Court including that of adjudications under the Central Excise Act. 11. We, therefore, find that the statements made before the Central Excise Officers are admissible only when the persons making them are examined as witnesses and the adjudicating authority is convinced that the statements should be admitted as evidence. In this case three of the persons who made the statements were examined and all three have retracted their statements. It d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
