TMI Blog2019 (12) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... ious submissions and ascertain the extent to which those can counter the allegations in the show cause notice - appeal allowed by way of remand. - Excise Appeal No: 777 of 2010, 778 of 2010 - A/86849-86850/2019 - Dated:- 9-5-2019 - HON BLE MR C J MATHEW, MEMBER (TECHNICAL) AND HON BLE DR SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Ashok Kumar Singh, Advocate for appellant Shri NN Prabhudesai, Superintendent (AR) for the respondent ORDER PER: C J MATHEW The limited issue raised by the appellants, M/s Nashik Metal Pvt Ltd and Shri Mahendra S Tank, in these appeals against order-in-appeal no: AKP/46/NSK/2010 dated 8th February 2010 of Commissioner of Central Excise Customs (Appeals), Nasik is the consequential effect of breach of principles of natural justice on the validity of the impugned order which has confirmed the levy of duty, besides imposing various penalties, while allowing the appeal of Revenue against the dropping of the proceedings by the original authority. 2. We have heard Learned Counsel for the appellants and Learned Authorised Representative. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Customs, Aurangabad [2017 (347) ELT 413 (Bom.)] is cited in support. 7. We find that the order of the original authority dropping the proceedings had been set aside in the order now impugned before us and, in doing so, has placed overwhelming reliance on the non-acceptability of the claim of retraction as is evident from 7. I have carefully gone through the records of the case and the submissions, both written and oral, made by both sides. My observations are as under: (i) The appellant i.e the department, in the instant case has filed the appeal on the grounds as mentioned at para 5 supra. The issue to be decided by me is whether NSPL has cleared the quantity of 398.940 MT of TMT (Thermo Mechanically Twisted) Bars clandestinely, without payment of duty and without cover of Central Excise Invoices through or to FS or otherwise. Also whether interest under Section 11 AB is leviable and penalty under Section 11 AC imposable on NSPL. it is also o be decided whether penalty under Rule 26 of the Central Excise Rules, 2002 is imposable on MST and FS. (ii) The facts of the case, indicate that it is a case of clandes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y v. CCE - 1997 {90) E.L.T. 241 (S.C.). Besides it is not sufficient to allege that the statements were obtained under duress, coercion etc. but evidence regarding such duress etc. is also required to be produced which has not been done. MST and FS have been unable to prove that the statements were taken under threat, duress or coercion. (iii) I find that the retraction of FS and MST addressed to Director General, D.G.C.E.I, New Delhi when the statements were recorded by Additional Director, D.G.C.E.I, Mumbai Zonal Unit, Mumbai, defies logic. I find that retractions are more of an afterthought on part of both the appellants when cornered with glaring evidence, when other escape routes to wriggle out of the case, were non existent. No where have MST and FS mentioned that the statements were taken under duress, threat or coercion. The statements were recorded in response to summons. The appellants were well aware of the legal provisions and the consequences of the statements tendered. They deposed and agreed to having indulged in covert activities before the investigative agency when confronted with stark evidence. The so called subsequent retractions were attribut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmission. Retraction from that admission would not detract from its value and constitutes substantive evidence on the basis of which alone the petitioner can be held guilty of the charges and convicted. (vi) The respondent has relied on a number of cases as listed below. a. CCE, Surat Vs. Classic Ind. Ltd. [2007(210) ELT211 (Trib.Ahmd)]. b. Ghodavat Pan Masala - 2004(175) ELT 182(Tri) c. Gurusamy Vs. CCE [2002(145) ELT 616 (Tri.Chen)]. d. T.G.L. Poshak Corporation Vs. CCE [2002(140) ELT 187 (Tri.Chen)]. e. Meenabai Fireworks Ltd. - 2002(142) ELT 128(Tri) f. Quality Exports Chemicals Vs. CESTAT [2002(140)ELT 362(AU)]. g. Rina Dyeing Printing Works Vs. CCE [2007(209)ELT 190(Tri.Mum)]. h. i.Guruswamy Vs. CCE, Madurai - 2002(145) ELT 616(Tri-Chennai) i. AAR Kay Industries Vs. Chandigarh Vs. CCE - 2004(165) ELT 412 (Tri-Del) j. New India Dyeing a Finishing Mills Vs. CCE, Chandigarh-ll - 2004(165) ELT 316 k. Bhomuka Steel Ltd. Vs. CCE, Bangalore - 2007(211) ELT 67 (Ban.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk like statement of the persons concerned, statement of buyers etc. is required. I find that in the instant case there are enough evidences in the form of confessional statements of FS and MST and the buyers of clandestinely removed goods. Moreover, as already mentioned, the voluntary payment of duty on part of NSPL even before recording of statement of MST is an evidence, which weighs heavily in favour of the department. (viii) Further, I find that both MST and FS are the main players in the whole case. FS is the conduit for MST. By active conniving and planning, they were able to undertake clandestine removal of goods and sell the same. Both have confessed to the same in their statements as already discussed above. MST, being the Director of NSPL, was actively involved in the manufacture and clearance of goods clandestinely. He was successful to the extent that he did not maintain any records of manufactured goods cleared clandestinely. However, his luck ran out when FS was caught with diaries and other records by the investigative agency. FS spilled the beans and confessed to having abetted MST to clear goods clandestinely and as a consequence, MST had to toe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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