TMI Blog2019 (7) TMI 1709X X X X Extracts X X X X X X X X Extracts X X X X ..... hen there was no other evidence, but for the entries in the note book ; in turn leading to the interference. There was no proper pleading of threat/force/duress/coercion or pressure as being utilized by the officers of the Revenue to extract the statements. On the other hand, statements were given by the persons concerned on their own volition. This being the position, the alleged violation of Section 9D of the Act, 1944 is not at all attracted - there is nothing wrong on the part of the Adjudicating Officer/Appellate Authority or the Tribunal in having accepted the statements given by various persons including the Director of the Appellant/Assessee-Company to reach the conclusion. The mandate is crystal-clear from sub-section (1) of Section 9D of the Act, 1944 (to consider the extent and applicability). The statute makes it point blank that, it is for the purpose of proving, in any prosecution for an offence under the Act, before a Court. This clearly means that the statement given by a person can be accepted as relevant by a Court in a prosecution proceeding for an offence either under clause (a) i.e. when the person who made statement is dead or cannot be found or inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se duty, just on the basis of circumstantial evidence? (C) Whether in absence of any corroborative evidence the liability along with penalty can be imposed upon the appellant for clandestinely removing the goods without the payment of excise duty? 3. Later, on observing that it might not constitute substantial questions of law, permission was sought for to get it amended which prayer was granted. Pursuant to this, the following questions have been suggested as involving substantial questions of law : (A) Whether Tribunal is correct in confirming demand of excise duty on clandestine removal of goods without corroborative evidence relating to such clearances without following the law laid down in this regard that charge of clandestine removal has to be evidenced based on multiple corroborative evidences and not based on indicative evidence? (B) Whether comparison of internal documents with invoices is evidence enough to establish charge of clandestine removal? (C) Whether Tribunal is correct in confirming the demand only by placing reliance on statement of director of Appellant and transporters to decide the appeal? (D) Whether adjudicating authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said circumstances, a penalty of ₹ 5,00,000/- was mulcted upon the Director. The above order was sought to be challenged by the Assessee-Company by filing statutory appeal before the competent authority i.e. the Commissioner (Appeals) who declined interference, in turn dismissing the appeal as per the order dated 28-4-2008. Met with the situation, a further appeal was preferred by the Appellant/Assessee before the Tribunal, who made a threadbare analysis of the facts and figures, the relevant provisions of law and the precedents and arrived at a finding that there was no scope for any interference. Dismissal of the appeal by the Tribunal made the Assessee to approach this Court by filing the appeal, as aforesaid. 7. As mentioned already, the crux of the contention raised in this appeal is more with reference to the facts and the evidence available, though the Appellant, by virtue of the better wisdom acquired years after filing of the appeal, has come up with some modified questions of law, suggesting as involving substantial questions of law, as extracted above. The primary contention put forth by the learned counsel for the Appellant is that there is no evidence to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, it was held as with the knowledge and involvement of the Director and accordingly, he was inflicted with penalty of ₹ 5,00,000/- as mentioned above; which made the Director also to file an appeal (Appeal No. E/1651/2008) before the Tribunal. Both these appeals were considered together by the Tribunal and a common order was passed on 20-3-2015, whereby the appeal (E/1650/2008) preferred by the Appellant-Company was dismissed; whereas the appeal (E-1651/2008) preferred by the Director of the Appellant-Company was partly allowed, modifying the quantum of penalty by reducing it from ₹ 5,00,000/- to ₹ 1,00,000/-. It is stated that no further challenge has been raised by the Director. The matter has become final and the penalty imposed on the Director is reportedly satisfied. 10. The common finding and reasoning given by the Tribunal (ultimately leading to dismissal of the appeal filed by the Assessee-Company) stands in fact in respect of the appeal preferred by the Director of the Company as Appeal No. E/1651/2008, though the quantum of penalty was reduced from ₹ 5,00,000/- to ₹ 1,00,000/-. Since no appeal has been filed against the said finding and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices. The fact remains that the duty to the tune of ₹ 22,02,065/-, with Education Cess was cleared by him accordingly. These factual aspects have been specifically adverted to by the Tribunal in paragraph 2 of the order under challenge. 12. It is revealed from the order under challenge that the investigating team had conducted search in the office/business premise of the transporter M/s. Poorvanchal Road Carriers, Raipur and various bilty books were seized; besides recording a statement from an employee of the Transporter on 27-6-2007 revealing removal of 69.180 MT of sponge iron without issue of Central Excise invoices, as referred to by the Tribunal in paragraph 8 of the order. Similarly, scrutiny of the bilty books recovered from another Transporter by name M/s. Giriraj Roadlines, Raipur on 20-12-2006 and the statement of the proprietor of the said establishment taken on 22-12-2006 revealing removal of 55.855 MT of sponge iron without issuing Central Excise invoices, are adverted to in paragraph 4 of the order. Reference is made in paragarph 5 that the investigating team had collected materials as recovered from the factory premises of M/s. Kailash Traders, owned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proving the allegation; whereas the Appellant/Assessee had miserably failed to discharge its burden of proof and that, it was not a case of some solitary evidence, but of multiple echoed evidence which demonstrated the oblique motive of the Appellant and proved its mala fides, in turn leading to dismissal of the appeal filed by the Assessee. 14. The above discussion clearly reveals that the finding rendered was not solely with reference to the contents of some loose sheets recovered from the premises of the Assessee, but on the basis of other incriminating materials traced out and the statements given by different persons including the Director/Shift Supervisors/Accountant/Cashier/Transporters and the Brokers/Commission Agent, compared and analysed with reference to the records/materials seized/recovered. As it stands so, the clear finding rendered on the basis of the facts and evidence on record, concurring with the finding of the Adjudicating Officer and the Appellate Authority is not liable to be interdicted by this Court in exercise of power under Section 35G of the Act, 1944. 15. It is the case of the Appellant that there is violation of Section 9D of the Act, 1944, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty imposed upon the Director of the Appellant-Company (as reduced) is not challenged any further and this has attained finality. As such, the above verdict does not support the Assessee-Appellant in any manner. 17. Coming to the other case considered by the Division Bench of this Court (cited supra), it was a case where the liability was fixed by the Adjudicating Officer with reference to the clandestine removal of the goods which came to be interdicted by the Commissioner (Appeals), but restored by the Tribunal. Apart from the question relating to the bar of limitation (which is not involved herein), the substantial question of law considered by this Court was whether the procedure adopted by the Tribunal was contrary to Section 9D of the Act, 1944 insofar as the verdict passed by the Tribunal was based on the statement given by the Director of the Appellant-Company before the investigating team and not any version given before the Tribunal. The question was answered in favour of the Assessee, leading to allowing the appeal and setting aside the verdict of the Tribunal. The substantial question of law raised in the said case are as given below : (i) On the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Apex Court in Commissioner of Central Excise v. Kalvert Foods India Private Limited; 2011 (270) E.L.T. 643 (S.C.) [as sought to be relied on from the part of the Revenue] holding that the judgment passed by the Apex Court accepting the statement given in evidence was based on its own facts as revealed from paragraph 19 of the judgment. The observation of the Apex Court in paragraph 19 as aforesaid is relevant in this case as well and hence, it is reproduced as below : 19. We are of the considered opinion that it is established from the record that the aforesaid statements were given by the concerned persons out of their own volition and there is no allegation of threat, force, coercion, duress or pressure being utilized by the officers to extract the statements which corroborated each other. Besides the Managing Director of the Company of his own volition deposited the amount of ₹ 11 lakhs towards excise duty and therefore in the facts and circumstances of the present case, the aforesaid statement of the Counsel for the Respondent cannot be accepted. This fact clearly proves the conclusion that the statements of the concerned persons were of their voliti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1944; to be relevant to the extent as mentioned either in clause (a) or in clause (b). In other words, it is not a provision vouched in a negative sense to hold that the statement given by the person concerned shall not be acceptable in evidence for the proceedings concerned. On the contrary, it is in respect of the power and jurisdiction of the court to accept the same as relevant. However, by virtue of sub-section (2) of Section 9D of the Act, 1944, such a course/power, as exercisable by the Court, is made applicable to any other proceeding under the Act as well (other than a proceeding before a Court) as they apply in relation to a proceeding before the Court. This clearly speaks about the extent of applicability i.e. it can only be to the extent as related to a proceeding before the Court, as mentioned in sub-section (1), and never beyond. 22. The mandate is crystal-clear from sub-section (1) of Section 9D of the Act, 1944 (to consider the extent and applicability). The statute makes it point blank that, it is for the purpose of proving, in any prosecution for an offence under the Act, before a Court. This clearly means that the statement given by a person can be acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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