Customs, Excise and Gold Tribunal - Calcutta
M/S. Suraj Containers Ltd. And Md. M.D. ... vs Cce, Calcutta-I on 30 January, 2001
Equivalent citations: 2001(131)ELT350(TRI-KOLKATA)
ORDER
Dr. S.N. Busi
1. In these two stay petitions - one filed by M/s. Suraj Containers Ltd. and the other Md.M.D.Hadish, driver of the truck No.WBB 9045 a prayer has been made for dispensing with predeposit of penalty of Rs.7500/- imposed upon M/s. Suraj Containers Ltd. and an equal amount of penalty imposed on Md.M.D.Hadish under section 173Q of the Central Excise Rules 1944 read with 52A of the Central Excise Rules, 1944 vide Order-in-Original dt.26.8.96 which was upheld by the Commissioner(Appeals) vide his order-in-appeal no.133/Cal-I/99 dt.29.2.2000.
2. This is a case where tin containers were seized in a truck when the same were being transported under cover of the invoices and challans bearing a different date than the date of actual removal. A show cause notice was issued to the company as well as to the driver of the vehicle. The adjudication proceedings resulted in confiscation of the said goods giving option to M/s. Suraj Containers to redeem the same on payment of a fine of Rs.20,000/-. The vehicle No.WBB 9045 was also confiscated. However, redemption fine of Rs.25,000/- was imposed on the owner of the said vehicle.
3. When the matter was taken up in appeal, Commissioner(Appeals) has upheld the said order-in-original. Hence the present appeal with a prayer for stay.
4. Shri Nitin Jain, authorised representative of the applicants, submits that the department has relied squarely on the so called confessional statements of the executive of the company and the driver although no mandatory warning was administered to them. He further submits that there is no corroborative evidence to substantiate the charges levelled against the appellants. In this connection, he invites attention to the judgement of Hon'ble High Court of Andhra Pradesh n the case of Assistant Commissioner of Central Excie v. Dankan Agro Indus.Ltd.-1992(57)ELT 545(AP) wherein it was held that confessional statements recorded by the central excise officers without administering to the accused the mandatory warning embodied in section 164(2) of the Cr. P.C. not admissible in proceedings against the makers thereof or against the co-accused. The ld.representative submits that in the instant case no mandatory warning was administered to the persons from whom the department had recorded the statements. The ld.representative also refers to the judgment of the Hon'ble Calcutta High Court in the case of Manindra Ch.Dey v. CCE-1992(52)ELT 192(Cal) wherein it was held that confessional statement even if found admissible should be treated as a light weight document needing independent corroboration. He, therefore, pleads that since there is no independent corroboration in the instant case the confiscation of the goods as well as the truck is bad in law. Likewise imposition of penalty is also unwarranted and unjustified. The ld.representative has also argued that the Commissioner(Appeals) has merely observed that he does not find any reason to interfere with the order passed by the Asstt.Commissioner without fully discussing the arguments advanced before him by the appellants. The ld.representative prays for grant of stay and dispensing with the condition of the predeposit of the penalties upon the company as well as on the driver.
5. Shri A.K.Chattopadhyay, ld.JDR appearing for the Revenue, while reiterating the reasoning contained in the impugned order, refers to the decision of the Hon'ble Supreme Court in the case of C.Sampat Kumar v. Enforcement Officer(Directorate), Madras-1997(96)ELT 511(SC) wherein it was held that the administration of caution to the person summoned is not required. He, therefore, submits that there is no force in the argument of the ld.representative that before recording the statement, the central excise officers are required to administer warning to the persons from whom the statements are recorded. The ld.JDR submits that the Commissioner(Appeals) has passed the order after due consideration of all the pleas made before him as is evident from the order-in-appeal.
6. After carefully considering the pleas advanced from both the sides and on careful perusal of the Order-in-Original as well as the Order-in-Appeal, I am of the prima facie view that there has been no proper appreciation of the facts on record by the authorities below which eventually led to passing of the impugned order. I am, therefore, convinced that the ends of justice would be fully met if unconditional stay is granted and predeposit of the penalties waived. Ordered accordingly. Matter to come up for hearing in due course.
Dictated and pronounced in the court.