Customs, Excise and Gold Tribunal - Delhi
Maheshwari Marbles And Granites ... vs C.C.E. on 28 June, 1996
Equivalent citations: 1997(93)ELT461(TRI-DEL)
ORDER G.R. Sharma, Member (T)
1. By this appeal, the appellants have assailed the order of Collector, Central Excise confirming the demand of Rs.73,072/- and imposing a personal penalty of Rs. 15,000/-.
2. Briefly stated the facts of the case are that the Central Excise officers visited the factory of the appellants on 22-11-1992. During the course of checking the records, the officers recovered one pocket diary from Shri Shyam Sunder Daga, the authorised signatory of the appellants. This diary contained date wise details of product on of marble slabs for the period 1-10-1992 to 21-11-1992. The notings in the diary revealed that the actual production of the marble slabs was being recorded in the said pocked diary and that only that quantity was being recorded in RG-1 register which the appellants wanted and not the entire production as was recorded in the pocket diary. The officers after comparing the production recorded in the pocket diary with the production recorded in RG-1 register found that 6051.480 sq. meters of marble slabs involving Central Excise duty amounting to Rs. 73,072/- were not recorded in RG-1 register. Shri Shyam Sunder Daga, in his statement recorded on 22-11-1992 stated that the production of marble slabs recorded in the pocket diary was the actual production during the period mentioned in the said diary and that they had not accounted for the entire production in their statutory records i.e. RG-1 register and that unaccounted goods were cleared by them without payment of duty and without issue of GP 1; that they had committed this offence because they were sawing marble slabs on job work basis and the parties who got the work done on marble blocks did not pay Central Excise duty. Statement of Shri Manohar Lal Daga, Director of the company was also recorded on 22-11-1992 who deposed that he was looking after day to day over all work of the assessee unit and identified the pocket diary recovered from Shri Shyam Sunder Daga and also deposed that the production recorded in the diary was their actual production but they had accounted for less production in RG-1 register. He confirmed the statement of Shri Shyam Sunder Daga and deposed that the suppressed quantity was cleared without payment of duty and without issue of GP I.
3. A show cause notice was issued to the appellants on 3-5-1993 asking them to explain as to why duty amounting to Rs. 73,072/- should not be demanded and why penalty should not be imposed. The lower authorities after hearing the appellants confirmed the demand for duty and imposed a penalty of Rs. 15,000/-.
4. Shri Manik Chand, the learned Constt. appearing for the appellants submitted that the said diary had nothing to do with the marble slabs manufactured and cleared from their factory; that Shri S.S. Daga had admitted that the diary contained his own account of dressing the marble blocks supplied to him by the customers on job charges; that the diary does not contain the name of their factory; that the factory stamp was put by the inspector at the time of recovery of the diary; that the statements of S/Shri S.S. Daga and M.L. Daga do not show the full production; that no corroborative evidence was collected in respect of alleged excess production and clearance of marble slabs; that no evidence has been brought on record that the excess raw material was received by the appellants so that is could be proved that the excess raw material was converted into marble slabs. The learned Constt. cited, and relied on the Tribunal's decisions in the case of Kashmir Vanaspati reported in 1989 (39) E.L.T. 655 and Raza Textiles reported in 1989 (44) E.L.T. 233. The ld. Constt. also submitted that Shri MR. Daga, the Managing Director of appellants' company made a telegraphic complaint on 27-11-1992 about recording of statement of Shri M.L. Daga and S.S. Daga under threat. The learned Constt. submitted that the entire case of the Department is based on surmises and conjectures and prayed that the impugned order may be set aside and the appeal may be allowed.
5. Shri Haja Mohiuddin, the learned JDR appearing for the respondents submits that the appellants had suppressed the production of 6051.480 sq. meters of marble slabs involving duty amounting to 73,072/- during the period 1-10-1992 to 21-11-1992; that this fact was admitted by Shri S.S. Daga and Shri M.L. Daga; that the clearance of this excess production without payment of duty was also admitted by these two persons. The learned JDR submitted that the appellants had pleaded that the statements of these two persons were recorded under duress. The learned DR submitted that neither of them retracted their statements nor was any report lodged by these two persons with any authority. He submitted that a complaint was lodged by Shri M.R. Daga on 27-11-1992 stating that the statement of S.S. Daga and Shri M.L. Daga were recorded under duress. The ld. DR submitted that this complaint cannot be equated to a retraction; that the statements are to be read with pocket diary recovered from Shri S.S. Daga, the authorised signatory of the appellants. The ld. DR, therefore, submitted that suppression of production and its clandestine removal is established and therefore, the lower authorities have rightly confirmed the demand for duty and imposition of penalty.
6. Heard the submissions of both sides, perused the case records, On careful consideration of the entire evidence on record, I find that the appellants have relied upon two points . One point that they diary did not belong to the accounts of the appellants and the second point is that the statements Shri S.S. Daga and Shri M.L. Daga were recorded under duress and therefore, should no be given the status of primary evidence.
7. On the question of the diary, I find that on 12-10-1992, the assessee had accounted for the production of two blocks only out of nine blocks. Similarly, on 10-11-1992, the appellants recorded production of three blocks only out of eight blocks and also that out of these three blocks, two were accounted for on 10-11-1992 and one on 11-11-1992. Further on 11-10-1992 only two blocks out of seven blocks were accounted for in RG-1 register. Now this is to be seen in relation to the statements of S/Shri M.L. Daga and S.S. Daga. Before actually dealing with their statements, I would like to examine the plea of the appellants that the statements were recorded under duress. This plea has been advanced in support of their complaint filed by Shri M.R. Daga, Managing Director of the appellants company. This complaint was not filed by one or both of the persons whose statement is supposed to be taken under duress. The two persons were neither arrested nor were under custody upto 27-11-1992. Thus the complaint filed is neither a retraction nor can it be termed as a retraction.
8. Moreover, the statements are to be seen in terms of the entries in the pocket diary recovered from Shri S.S. Daga. I also find that some of the entries in the pocket diary tallied with the entry in RG-1 register. I also observe that this diary was recognized by Shri M.L. Daga. I also find that the statement of Shri S.S. Daga was fully confirmed by Shri M.L. Daga and hence it can be concluded that the diary recorded the correct entries of the marble slabs manufactured by the appellants.
9. Now, let us examine the statements of Shri S.S. Daga and Shri M.L. Daga. Both these persons identified the pocket dairy and stated that the diary showed the production and clearance of marble slabs of the appellants. These statements are voluntary and also true to explain the entries in the diary.
10. In view of the above discussions, it is proved beyond any doubt that the appellants had suppressed the production and did not record it in RG-1 register and removed this excess production without payment of duty. In this view of the matter and in view of the evidence discussed above, I uphold the impugned order and reject the appeal.