TMI Blog2003 (8) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... iminating documents found therein. During the course of investigation, statements of several persons, including the Petitioner No. 2, were recorded. The Petitioner No. 2 in his statement inter alia admitted that the linkage between the exported fabrics and the duty paid fabrics purchased for export could not be established and accordingly, deposited back part of the duty rebate wrongly obtained by the Petitioners. On completion of investigation, five show cause notices were issued to the Petitioners and thereafter, the order-in-original dated 7th December, 2000 was passed by the Additional Commissioner of Central Excise, Mumbai confirming the demand of duty rebate which was wrongly granted to the Petitioners. By the said order, the amount deposited by the Petitioners during the course of investigation were directed to be appropriated towards the demand and the Petitioners were called upon to pay the balance amount. By the said order penalty of Rs. 2,00,000/- was levied upon the Petitioner No. 1 and penalty of Rs. 1,00,000/- on the Petitioner No. 2. On appeal, the Commissioner of Central Excise (Appeals) by his order dated 31st March, 2002 confirmed the order of the Additional Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that there is no linkage of the party issuing the NOC with the party who has sold the fabrics to the Petitioners is not sustainable. It was submitted that it is an undisputed fact that the fabrics were received in mill packed condition and the same were cut and repacked under the physical supervision/control of Excise Officer's and hence the duty rebate correctly given to the Petitioners could not be denied. 6.As regards the statement of Mr. Amit Motla (Petitioner No. 2), it was submitted that his statements were taken under duress and that in their defence reply dated 24-4-1999 (in reply to the show cause notice dated 9-2-1999), it was clearly stated that the statements taken under duress and pressure do not reflect the correct position which was actually prevailing at the relevant time. It was submitted that the authorities below did not rely upon the statement of Mr. Amit Motla recorded on several days in September, 1995 and, therefore, the Petitioners were under the bona fide belief that the retracted statements have not been considered as the basis for the denial of the rebate claim and, therefore, no reference to the retracted statements of the Petitioner No. 2, were made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exports made by the petitioners could not be co-related with the duty paid documents, no interference is called for in a Writ jurisdiction. Moreover, the findings given by the authorities below is corroborated by the statement of the Petitioner No. 2 recorded under Section 14 of the Central Excises and Salt Act, 1944 ('Act' for short). In his statement recorded on 12th September, 1995, the Petitioner No. 2 had stated that his statement is binding on the Petitioner No.1, M/s. Roopkala Export Corp. (I). In his statement recorded on 20th September, 1995, Mr. Amit Motla, the Petitioner No. 2 herein, inter alia, stated as follows : - ".. Yesterday i.e. on 19-9-95 I had been shown by you Refund Order No. 11252, dated 25-9-92 for Claim No. 12528, dated 7-9-92 along with the enclosed document. Yesterday I was not in a position to comment on same since the matter was old. Today I am in a position to comment on the same. The goods i.e. fabrics have been received from the traders in PCS.... ....To your query as to the purchase of fabrics of 5.25 Lmtrs. and export of the same being shown 5.5 mtrs. In respect of purchase bills of M/s. Geeta Prints I have to state that normally it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raders in pcs. as shown in the purchase invoices of M/s. J.J. Group of Mills. I am putting my dated signature today on the purchase invoices from purchase File No. J to K for period 1-4-92 to 31-3-93 Page Nos. 599, 601, 603. To your query as to the purchase of fabrics of 5.00 Lmtrs. and export of the same being shown 5.5 mtrs. I have to state that normally it would not occur. However, since the matter is old I could not confirm the same but as it stands I do not have any explanation to the best of my knowledge and from the documents shown by you I have to state that the goods which were exported were not the goods which were shown in the gate passes and rebate was claimed. Since you have shown the above claim to be erroneous and I agree with the same this amount of Rs. 4035.39 may be adjusted against the payments of Rs. 2,50,000/- made by us on 12-9-95...." (emphasis supplied) It is further stated by Mr. Amit Motla as follows :- "Similarly, I have been shown copy of AR-4A No. 477, dated 8-7-91, a copy of SC No. 26251, dated 8-7-91, GPI No. 253, dated 12-3-91 of M/s. Pashupati Prints Pvt. Ltd. consigned to M/s. Ganpati Textile and M/s. Pashupati Textiles, AWB No. 61815014576, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of which the rebate was claimed. 13.From the aforesaid statements, it is also clear that the Petitioners having failed to establish that the export fabrics were made from duty paid fabrics have voluntarily deposited the duty rebate wrongly received by them. These statements were never retracted. Therefore, in view of the uncontroverted admission of the Petitioner No. 2 in his statement recorded under Section 14 of the Excise Act to the effect that the goods which were exported were not the same which were shown in the GP1 and rebate was claimed, no fault can be found with the orders passed by the authorities below. 14.It was, however, contended that in the defence reply dated 24-4-1999 (in reply to the show cause notice dated 9-2-1999), the Petitioners had submitted that the statements of Petitioner No. 2 were taken in the year 1995 under duress and that the said statements do not reflect the correct position which was prevailing at the relevant time. By no stretch of imagination such a vague statement made in reply to the show cause notice can be said to be a retraction of the statement recorded under Section 14 of the Act. Even assuming that the said statements were retra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Petitioners during the course of investigation, voluntarily, surely, the Petitioners would not have kept quiet for three and half years and only on issuance of the show cause notice in 1999 would not have mildly protested in their reply that the statements recorded in 1995 do not reflect the correct position. Therefore, in view of the uncontroverted statement of the Petitioner No. 2 coupled with voluntary payment made by the Petitioners during the course of investigation, we do not find any merit in the contentions raised on behalf of the petitioners. 17.Apart from the above, the contention of the Petitioners that from the documents on record the linkage between the export goods and the duty paid fabrics can be established is also without any merit. To prove that the export fabrics were made from duty paid fabrics, the Petitioners have relied upon the purchase bill of dealer C (from whom the fabrics were purchased by the Petitioners) and the N.O.C. issued by dealer A who is supposed to have purchased the fabrics from the manufacturer on payment of duty. Now, the question is how to link the duty paid fabrics sold by dealer A to dealer B, from dealer B to dealer C and ultim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case has been handled by the Excise Authorities. In this case, in September, 1995, the Respondents came to know that the endorsement made on the shipping bills by the Excise Officers certifying that the export fabrics were cut and packed under their supervision were incorrect, if not false. In spite of the above knowledge, no action was taken against those officers. In the order-in-original, the Additional Commissioner of Central Excise, Mumbai-I (Page 185 of the petition) has stated that in Government service, due to pressure of work or urgency of or otherwise, documents are signed by the Officers in good faith and that this could be a serious mistake for which action can be taken against such Officers. In the present case, in fact, no action was taken and the concerned Officers who had issued bogus/incorrect certificates have been allowed to retire peacefully in the year 1996 or thereafter in spite of the knowledge in September, 1995 that these Officers had issued bogus/incorrect certificates. We are told that in view of the retirement, no action can be taken against those Officers. Inaction on the part of the higher authorities in the Central Excise Department to in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
