TMI Blog2018 (8) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Commissioner (A) has either remanded back the cases with a direction that the quantification of evasion on the basis of evidence available on record is required to be restricted with reference to the actual evidence available and cannot be extended to those transactions which relate to other dealers/customers where no evidence is available - the Commissioner (A) has taken a fairly judicious view of the case of the appellant and has given directions to restrict the duty liability to the extent of documents, statements which corroborate the actual transactions whereas the show-cause notices were issued with a generalized principle extrapolating one instance to the entire set of clearances by the appellants - the question is answered in affirmative. Reliability of statements - Whether disowning of statements during the cross- examination is a valid ground for not taking the statements into consideration? - Held that:- In this case, the cross examination was not denied and the case was not only based on the statements of the persons it was corroborated by the evidence wherever it was available. As observed by the adjudicating authority, nothing has been brought on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed to the customers separately; the value/prices shown in the invoices were only 50% of the actual price and amounts over and above the bill were normally paid by the customers in cash to the representative of the firms. The Department, inter alia, relied upon the following: (i) E-mail message dated 12.11.2002 supposed to be sent by One Shri Manilal P. Suther, Partner of M/s. Vishnu Sales to M/s. A. K. Group firms which reads as under: Now keep the above mentioned material ready, I am sending you the total amount mentioned above. As talked to you over phone I want at least 50% to 65% bill and now give me the details on which name I should send the DD. (ii) A handwritten slip recovered from the premises of M/s. Plywood Associates, Coimbatore in respect of the sale of plywood to M/s. Ganesh Plywood and Hardware, Erode under the Bill No.1630 dated 30.3.2004 wherein it appeared that the actual price was ₹ 22,132/- whereas invoice was showing only ₹ 17,125/-. (iii) A notebook seized from M/s. Plywood Associates, Coimbatore on 28.4.2004 detailed at page 39 and 44 shows actual amount and invoice amount collected in respect of Invoice No.1601 dated 3.3.2004; I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E/493/2007 M/s. Nafeesa Frameworks Rs.15,07,556/- Rs.15,07,556/- u/s 11AC Rs.5,00,000/- u/Rule 25 Remanded to Original Authority (No appeal is filed) Mr. Nazeem Ahmed Rs.2,00,000/- (No appeal is filed) Mr. Niyam Ahmed Rs.2,00,000/- SCN 47/05-06 OIO No.35/2006 dt.11.12.2006 OIA No.176/2007 dt.4.4.2007 3 E/592/2009 A.K. Boards Doors Rs.28,10,357/- Rs.28,10,357/- u/s 11AC Rs.10,00,000/- u/R 25 Rs.6,61,769/- Rs.6,61,7 69/- 4 E/593/2009 Mr. Niyaz Ahmed Rs.5,00,000/- Rs.50,00 0/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UOI: 2016 (340) ELT 67 (P H). They also relied upon G-Tech Industries: 2010 (339) ELT 209 (P H), wherein it was held that the statutory procedure provided in Section 9D has to be followed for admitting any statement recorded before a gazetted officer. The retraction of these witnesses before the adjudicating authority stands invalid. There should corroborative evidence in support of the charge of undervaluation. From the slips recovered from the dealers, the goods have presumably been sold for a lesser value and collected the balance amount in cash. At best, it suggests that undervaluation was only done by the dealers and not by the appellants. The same can only be applied to a particular transaction but cannot be generalized. They relied upon Goyal Tobacco Co. Pvt. Ltd.: 2017 (348) ELT 720 (Tri.-Del.). They also relied upon CESTAT s decision in the case of CERA Boards and Doors: 2010 (249) ELT 550 (Bang.) wherein it was held that post 1.7.2000, the allegation of undervaluation under transaction value regime has to be proved with evidence in respect of each and every removal. 3.2 The learned counsel submitted that all the firms involved are partnership firms and therefore, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequent negation at the time of cross examination and has come to a conclusion that there are good evidences for prima facie establishing a case of undervaluation against the appellants. There was no proof whatsoever that the statements were recorded under force or duress especially no one has retracted the same immediately afterwards. The appellants have not challenged this finding. The statements recorded at different locations from different persons on different dates giving the same conclusion is amply proof that the statements are reliable documents. The learned Commissioner (A) has either remanded back the cases with a direction that the quantification of evasion on the basis of evidence available on record is required to be restricted with reference to the actual evidence available and cannot be extended to those transactions which relate to other dealers/customers where no evidence is available. In respect of two cases, the learned Commissioner (A) has obtained a report from the jurisdictional Commissioner on quantification of duty to be demanded in adherence to the principles enumerated above. On the basis of the reports given by the jurisdictional Commissioner, the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see before the Excise Officers were admissible as they were voluntary. Their retractions did not affect the evidentiary value; therefore, the demand was upheld. We find that he has also rightly relied on another case of this Bench in the case of Fathima Panels vs. CCE, Mangalore reported in 2014 (313) ELT 641 (Tri.- Bang.) wherein it was held that the We find that statements were obtained from the dealers and employees of the assessee who narrated the modus operandi followed by BA Group of Companies to invoice a lower value for the purpose of payment of duty and collecting similar amount in excess in cash. We find that as per the statements of the dealers, they had purchased excisable goods knowingly paying a lower amount on which duty was paid and paying the balance in cash. We find that these statements are incriminating the dealers themselves because they had connived with the assessee in evading excise duty. This was also for their gain. They could be penalized under the Act and Rules made thereunder. If such incriminating statements were obtained by the coercion, it was expected of them to retract the same as early as possible. None of them had admitted any such retraction. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habra vs. UOI: 1997 (89) ELT 646 (SC), wherein it was held that statements made before Customs Officer though retracted within 6 days is an admission and binding since Customs Officers are not Police Officers. 6.1 We find that the learned DR has also relied upon the decision of Abdul Aziz Reshamwala vs. CC, Jaipur: 2003 (158) ELT 692 (Tri.-Del.) and Division Bench decision in the case of D.R. Chakrapani Chettiar and Others: 1985 (21) ELT 836 (Tri.) wherein it was held that If the appellant did not controvert the confession immediately and did not make any grievance on remand before the Magistrate about any alleged act of extortion or coercion regarding the statement, confession cannot be said to have been extorted by coercion or was not voluntarily and that Retraction of confessional statements after a period of more than six months from the date of its recording not attached any credence . This answers the second question raised above. 7. Coming to the third question of applicability of penalty on the partners of the appellants. We find that learned Commissioner (A) opined that as penalty under 11AC is imposed on the firms, penalty on firms under Sections 25/26 is not requ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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