TMI Blog2021 (4) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... the statements of employees of M/s Kaycee Electricals can be considered to be the admission on part of appellants Section 31 of Evidence Act has also been wrongly applied. Section opens up saying that admissions are not conclusive proof, but may estop. The intent of section 31 of Evidence Act is also that admissions can always be explained and can be shown to be wrong. It is in the absence of such explanation that the admission may estop the maker thereof - Law is settled that burden of proof for alleged clandestine removal of goods by appellant is upon the department. Section 31 and 58 of Indian Evidence Act are held not applicable to the given facts and circumstances. The Adjudicating Authorities below are warned to make complete proper compliances of the orders of remand. They need to be careful while making the interpretation of the orders of the Tribunal - Appeal allowed - decided in favor of appellant. - Excise Appeal No. 50465 of 2019-SM, 50533 of 2019-SM, 50534 of 2019-SM and 50535 of 2019-SM - FINAL ORDER NOS. 51244 -51247/2021 - Dated:- 12-4-2021 - MS. RACHNA GUPTA, MEMBER (JUDICIAL) Shri V. S. Negi, Advocate for the appellant Shri P. Juneja, Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Kaycee Electricals and Shri Jatinder Kumar Aggarwal, Partner thereof have been dropped. However, demand against M/s M. S. Metal Co. and against M/s Master India Pvt. Ltd., alongwith the imposition of penalty upon the Partner/ Director thereof has been confirmed. Penalty has also been imposed on M/s Smita Global Pvt. Limited. Being aggrieved, these appellants are before this Tribunal. 3. I have heard Shri B. L. Yadav, learned Advocate for the appellant and Shri P. Juneja, learned Authorised Representative for the Department. 4. It is submitted on behalf of the appellants that the entire documents on which the demand has been confirmed against the appellant were recovered from the factory premises of M/s Kaycee Electricals and from the residential premises of its Partners. Further reliance has been placed by the Adjudicating Authority on the statement of Shri Shambhu Prasad, Supervisor, Shri Manik Chand Pareek, Supervisor and M/s Kaycee Electricals. However, the demand against the said M/s Kaycee Electricals has been dropped. Thus, there remains no reason for confirmation of demand against the appellant herein and their Partners / Directors. It is submitted that this Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the matter was remanded back for denovo adjudication. It was observed in the said order as follows:- 11. After hearing the Ld. DR and after having gone through the impugned orders, I find that the Revenue s entire case is based upon the loose chits recovered during the course of search of the factory read with the statements of various persons. Though the appellant had made a request for cross examination of the said deponents so as to establish the veracity of the truth of the said statements, the adjudicating authority has neither referred to the said request nor decided on the same and proceeded to pass the final impugned order. The Hon ble P H High Court in the case of Ambika International Ltd. has observed that statement recorded during the investigation, under section 14 of the Central Excise Act whose makers are not examined in chief before the adjudicating authority would have to be eschewed from evidence and it would not be permissible for the Revenue to rely on the said evidence while adjudicating the matter. There is no justification for jettisoning the procedure statutorily prescribed by plenary legislation for admitting into evidence and statement recorded befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority are not at all correct as the direction of the order of remand has not been properly complied with. The Adjudicating Authority is rather opined to have not correctly interpreted the said order of remand. Once it has come in the statements of the appellants at the stage of cross-examination that the earlier statement was got recorded under threat, those statements come out of the scope of being called as admission to which Section 58 of Evidence Act applies. Admissions to be admissible into evidence without any further proof have to be voluntarily, cogent and convincing. The statements recorded at the stage of denovo adjudication are sufficient enough to show that the statements were under threat and coercion, hence, can no more be called as voluntary. Hon ble Apex Court in Chikham Koteswara Rao vs. Subbarao reported as AIR 1981 SC 1542 held that admissions to be substantive evidence should be clear and conclusive and there should not be any doubt and ambiguity. In another decision of Nagindas Lamdas vs. Dalpatram Ishharam reported as 1974 (1) SCC 242, the Hon ble Apex Court held that for being the best proof as mentioned under Section 58 of Evidence Act, admission should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants. I hold that confirmation of demand against the appellants based on these two grounds is therefore not sustainable. The Adjudicating Authority has dropped the entire demand against M/s Kaycee Electricals and the penalties upon its Partners no question survives for confirmation of demand on the job workers or the raw material suppliers of M/s Kaycee Electricals. The Adjudicating Authority below is held to have given a wrong interpretation to the order of remand vide which denovo adjudication was directed after providing the opportunity of cross-examination to the parties. The authority below has failed to appreciate the said direction and also the law with respect to the admission. 10. Section 31 of Evidence Act has also been wrongly applied. Section opens up saying that admissions are not conclusive proof, but may estop. The intent of section 31 of Evidence Act is also that admissions can always be explained and can be shown to be wrong. It is in the absence of such explanation that the admission may estop the maker thereof. Hon ble Apex Court in Nagubhai Ammal Others vs. B. Shama Rao others reported in AIR 1956 SC 593 has held that admission is only a piece of eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
