TMI Blog2007 (11) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent. [Judgment]. - The challenge made in this writ petition is against Exts.P1, P2, P2(b), P3, P5 and P26. The petitioners seek to issue appropriate writ order or direction quashing the same and to direct the respondents to refrain from implementing orders Exts.P1, P2, P2(b), P3, P5 and P26 and from taking proceedings pursuant thereto. 2. M/s. Pokkath Industries is a partnership firm established in 1971 with seven partners. It was engaged in the business of manufacture of tread rubber and garden hoses. The partnership firm was reconstituted in 1982 with three partners namely Mr. P.V. Varghese, Mr. P.V. Davis and Mr. P.V. Jose. In 1985 except Mr. P.V. Varghese, the other two partners Mr. Davies and Mr. Jose, retired and the firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the driver of the car Shri K.J. Antony, the Manager of the factory Shri. Paul and the customer Mr. Davis were all taken by the Central Excise Officials. It was on 23.6.1987 the officer had seized 210 kgs. of tread rubber and also 278 kgs. of tread rubber kept in the factory inclusive of 160 kgs. tread rubber produced on the previous day and 128 kgs. produced on 23.6.1987. Copy of Ext. P24 mahazar under which the article was seized is produced in the case. The records kept in the factory were also seized. A search was also conducted in the residential premises of the first petitioner. The sales depot was also searched. The premises of the 7 th petitioner at Kunnamkulam was also searched on 23.6.1987. 122 Invoices issued to Shri. Ullas, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption drawn from an unproved fact that the unit has purchased carbon black in fictitious name and manufactured tread rubber using the same but not accounted. The authorities below placed reliance on the statement given by Shri. K.L. John and Shri. P. Balakrishnan Nair even if they have not retracted from the statement given to the Excise Officials, their statements are not admission to be binding on a third party like the petitioner, so far as they are not fastened with any liability, those statement may be binding on them the statement maker but not on the manufacturer so their statement could at best be taken only as evidence and merely because they are not retracted, the evidentiary value of such statement given by them tested in the cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of excise duty and were brought from the sale depot, there is no appreciable evidence in this regard. The statement given by Mr. Varghese, proprietor of the unit at the relevant time would clearly admit the fact that his own Manager had stated that these goods were manufactured in their own factory in respect of which no duty was paid. Even though Mr. Varghese subsequently filed a statement of retraction, I have perused the said retraction statement of Ext. P26(a) produced in the case. I find that in his earlier statement as to what has been told by his Manager has not been retracted. The authorities below have evaluated the evidence on record and having come to the conclusion that they have not paid any duty no interference is called for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation in this regard was conducted by the authorities. There is also no materials available on record as to the period during which such alleged sale of the carbon black was made to the petitioner unit and whether production during that relevant period was more compared to the previous period, whether there was any increase in the consumption of electricity to presume that the production was much more than accounted for and what is the normal quantity of manufacture using the machinery in question are further matters on which there is no evidence on record. Of course, the burden to produce these types of evidence lie on the petitioners as they are within their specific knowledge. But there is no primary materials to show that purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
