TMI Blog2023 (6) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... were delivered under the above Chits to any Jobworker. On going through the statements of Shri Navinchnadra Dholakia dated. 14.06.2006 wherein he stated that snuff mentioned in the Chits found from their factory premises were cleared without payment of central excise duty. During the search excess qty. of finished goods viz. snuff also seized by the department from the premises of Appellant and their Job Workers.During the investigation Appellant also paid the duty amount of Rs. 40,00,000 towards their liability. As such, it is seen that there is enough evidence on record to sustain the charge of clandestine removal against the appellant. It is on records that when the officers of revenue searched the premises of the Appellant and recovered the said chits under Panchnama, Shri Vimalbhai Mavani, Accounts Clerk of the Appellant, who have prepared these Chits, stated that these were prepared as per the direction of the Shri Navinchandra Dholakia, Partner of the Appellant and that no goods were delivered under these Chits to their factory. if the contention of the Appellant has to be held true then these chits should have been prepared by the Job-workers returning the semi-finish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H NAIR And HON'BLE MEMBER (TECHNICAL), MR. C L MAHAR Shri, Paresh Dave, Advocate for the Appellant Shri, G. Kirupanandan, Assistant Commissioner (AR) for the Respondent ORDER RAMESH NAIR All these appeals have been filed against the impugned Order-in-Original dated 31.03.2009 passed by the Learned Commissioner, Central Excise, Bhavnagar. 2. Briefly stated, the facts of the case are thata specific intelligence was gathered that the Appellant was indulging in large-scale evasion of Central Excise Duty by way clearing snuff manufactured by them, without payment of duty. The officers of DGCEI, carried out searches at the various premises. During the course of search, some un-explained cash, rolled into bundles and attached with certain chits were found lying in the drawer of the cabin of Shri Navinchandra Purshottambhai Dholakia, Partner of Appellant s firm. The physical verification of finished excisable goods lying at the Appellant on the day of the search revealed that goods were lying unaccounted and in excess of the recorded balance appeared in the statutory daily stocks account viz. RG-1 Register, maintained up to 13.06.2006. Search was also condu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but nothing significant was asked to him. The only confessional statement in this case has been that of Shri Navinchandra P. Dholakia dated. 14.06.2006, which stands retracted by virtue of affidavit sworn on 01.07.2006. In the statement of Shri Vialbhai Mavani recorded on 14.06.2006, he has stated that entries of the chits were made in the Grinding and Drying register maintained in their godown. He has also stated that he did not have any information regarding the purpose of the chits, and only Navinbhai could give explanation in this regard. Shri Mavani has not stated or admitted that the chits were for recording fully manufactured snuff which was illicitly sold or removed from the factory. 3.2 He also submits that Shri Babubhai Chavada one of the Job workers was cross-examined and he has clearly stated that the chits were for work of grinding done by him and other person, and the goods ground by them and mentioned in the Chits were sent back to the main factory. Shri Vima lMavani (Accounts Clerk) was also cross examined. He also clarified that the Chits were for grinding snuff returned by the job workers from Kandviwala Ghar, and the Chits were maintained for payment to Job Wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ails like the date, the job worker s name, quantity in terms of bags etc. appearing in the chits also fully correlates with the corresponding details in the register, and the payment to the Job Workers on monthly basis is also established on the basis of the documents recovered from the appellant during the investigation. These document are in the nature of unimpeachable corroborative evidence for establishing that the chits were not quantity of fully finished snuff illicitly removed by the Appellant. 3.5 He also submits that the department has not located a single buyer for delivering 2,96,220 Kgs. Of Snuff; there is no evidence of receiving payment of Rs. 1.78 Crores (rounded of) by the appellant as price of snuff allegedly removed clandestinely; there is no instance of actual removal of unaccounted finished goods without payment of duty; there is no discovery of such finished goods outside the factory; there is no statements of any buyers nor any proof of actual transportation of the goods cleared without payment of duty; the statement of a partner stand retracted with full details whereas no subsequent statement of any confessions has been recorded after the retraction; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. This statement has not been retracted. Therefore if the chits contained details of semi-finished goods received back from the Job worker then Shri Shri,Vimal Manvani could have very well deposed the said fact before the investigating officers. 4.1. He also submits that when Shri Vimal Mavani was shown the Chits seized from the premises of the Appellant during the course of recording of his statement, he stated that the same were mostly prepared by him and that even though the chits showed clearances of semi processed raw materials, no raw material was delivered under the said chits. Shri Vimal Mavani was not in any way prevented at that time from clarifying, if the said chits reflected about the semi-finished goods received from the job workers. Subsequent clarification after almost a month is nothing but to circumvent the law. The affidavit submitted by the Appellant vide their letter dated. 10.07.2006 is nothing but an afterthought which has been clearly brought out by the Commissioner in his order. Shri Vimal Mavani who had prepared chits had never retracted his statement. His deposition was further endorsed by the Partners of the Appellant Shri Navinchandra Dholkia and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.2 We, however, do not find any merit in the above contention of the ld. Advocate. Firstly, we find that Shri Vimalbhai Mawani, the Appellant s Accounts clerk, prepared these disputed Chits and categorically in his statement dated. 14.06.2006 stated that no raw materials were delivered under the above Chits to any Jobworker. Secondly, we also gone through the statements of Shri Navinchnadra Dholakia dated. 14.06.2006 wherein he stated that snuff mentioned in the Chits found from their factory premises were cleared without payment of central excise duty. During the search excess qty. of finished goods viz. snuff also seized by the department from the premises of Appellant and their Job Workers.During the investigation Appellant also paid the duty amount of Rs. 40,00,000 towards their liability. As such, it is seen that there is enough evidence on record to sustain the charge of clandestine removal against the appellant. 5.3. We find that the learned counsel has referred to the affidavit as clarificatory. Any clarificatory statement should have been given, without delay, to the authority which recorded the original statement. In the present matter admissions have been made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is on the person to prove that his statement was obtained by threat inducement or promise. The Hon ble Supreme Court further observed that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or make the same basis for conviction of the accused. In the case of Collector of Customs v. Mahindra Chandra Dey = 1997 (89) E.L.T. 478 (Cal.), Calcutta High Court held that principles relating to inadmissibility of confessions under Cr P.C. 1973 are not applicable to confessions made under Section 108 of the Customs Act. Incidental reference can also be made to the case of CCE, Chandigarh v. Nabha Steels Ltd. - 2004 (169) E.L.T. 345 (Tri.-Del.) where CESTAT held as under: 2. I have heard both the sides. The bare perusal of the record shows that the factory premises of the respondents was visited by the Central Excise officers on 25-7-2000. On verification of the stock of the raw material and finished goods, shortage of 8.835 MTs of non-alloy steel ingots was detected. Similarly, some shortage of runners and risers was also detected at the spot. These shortages were admitted by Shri Ajay Goyal, Director of the respondents and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans and received back the same from the Job-workers under said challans. However no such challans were there to support the contention of the Appellant that the said Chits reflected semi-finished goods received back from the Job Worker. Admittedly, on sending of goods for Job work and receipt of processed goods from Job-workers, the goods are required to be entered in the statutory records i.e Job Work records, Job Work Challans, raw material accounts, finished goods accounts etc. Non-entry of the same in the statutory documents would admittedly lead to appellant s mala fide that same were meant for clandestine clearance. 5.6 We also find that Ld. Commissioner in his Order-in-Original after analysing all the statements recorded during investigation, cross-examination of persons and examination of documents on records clearly came out that the claims of appellant that 318 Chits were prepared for payment of Job work charges cannot be accepted as it was an afterthought and concocted on basis of cross-examination of persons. We also find that Statements tendered by a Job Worker Shri, Jaswantray Vora confirmed that no goods had been received in these chits. Further, if dalat registe ..... 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