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13. The facts of the case as given in the draft order are adopted for examination.

14. While going through records, it clearly comes out that officers in the anti-evasion branch, Delhi-I visited factory as well as residential premises of the appellant on 4.10.01. 14 loose sheets written on both sides papers pertaining to factory accounts were recovered and resumed by the officers. Shri Praveen kumar, Proprietor of the appellants firm in his statement dated 4.10.01 categorical admitted recovery of 14 loose sheets from his residential premises and admitted that the same contained details of clearances effected by him in clandestine manner without discharge of central excise duty and without support of proper documents. 9 Cheque of Rs.1 lakh each totalling Rs.9 lakh towards central excise duty evaded, was handed over. Statement of Shri Rajender Kumar, authorised signatory was also recorded on 8.10.01 wherein he admitted contents of the statement dated 4.10.01 of the proprietor Shri praveeen Kumar. It was also intimated that they have further deposited Rs.4 lakh by TR-6 challan dated 13.10.01 and 8.11.01. SCN dated 5.11.2003 was issued wherein it was alleged that the loose sheets recovered contained the details of the receipt and use/utilization of small and big pouches of Praveen Chhap Tobacco which after duly filled with unmanufactured tobacco were cleared without accounting for the same in the daily stock account register and without payment of duty leviable thereon. These facts were admitted both by Shri Praveen Kumar and Shri Rajender Kumar in their statement dated 4.10.01 and 8.10.01. Interestingly when a subsequent statement of Shri Praveen Kumar was recorded on 1.8.2003, he denied his earlier confession after a gap of two years contending that loose paper contained details of purchase and utilization of pouches of different sizes and lime tubes. It is on record that he had never disagreed with confessional statement made during the time of visit of his factory and residential premises and it was only an afterthought and that too after a gap of two years. He came with novel idea stating that details given in the loose papers relating to Praveen Chhap Tobacco pouches and Lime Tubes. Adjudicating authority did not find any convincing evidence and also did not rely upon statement which was retracted after two years and consequently confirmed duty amounting to Rs.30,74,033/- under section 11A(1) alongwith interest on said duty and equivalent amount of penalty under section 11AC ibid and Rule 173Q of erstwhile Central Excise Rules,1944 and Rule 25 of erstwhile Central Excise (No.2) Rules, 2001.

(f) It is also evident from record, that the details of receipt and use/utilization of small and big pouches of Praveen Chhap Tobacco after being filled with unmanufactured tobacco cleared without accounting the same in the daily stock account register and without payment of central excise duty were recorded in the private records.

16. Adjudicating authority in his Order-in-Original after analysing all the statements recorded during investigation and examination of various documents on records clearly came out that the statements tendered by Shri Praveen Kumar and Shri Rajender Kumar on 4.10.2001 were proper and statement of Sh.Praveen Kumar in para 9 of his statement dated 1.8.2003 was only retraction of his earlier statement of 4.10.2001 which was clearly an afterthought only with the motive to mislead the department and subsequently defraud the Revenue. He concluded that at the time of deposit of duty, party did not show any dissent or paid duty under protest. He further came to the conclusion that had the usage of small and big pouches and lime tubes mentioned in 14 loose sheets tallied with RG-1, the party would not have deposited the duty voluntarily or without showing any note of under protest. He also made reference to the non accountal of goods during search of premises. Above facts clearly indicated that there was preponderance of probability towards maintenance of private records in the form of loose sheets for those goods which were used in the manufacture of finished goods or finished goods as such, to be cleared clandestinely without discharging duty.

23. Voluntary confessional statement which is retracted after two years without any basis, has no legs to stand. No new facts have come on record to justify retraction short levy was paid consequent upon confession not once but twice. Further confessional statement rendered by Shri Praveen Kumar was also satisfied by Shri Rajender Kumar authorised signatory. Contentions that resumed records were only referring to pouches and lime tubes and not to filled pouches of tobacco is clearly afterthought as pointing out to the fact that seized record are having reference to the pouches etc. has no force as those facts were on record and were not challenged and actually admitted. Also duties on evaded tobacco were paid in two instalment (2nd instalment being after a gap of four months). Once evasion is accepted and documents are confronted manifesting fraudulent intentions to defraud, there is no force in learned Member (Judicial)s contention that there were no investigations relating to procurement of raw materials and manufacture of huge quantity of final goods and transportation of goods. I feel once an evasion is clearly admitted and these activities are undertaken in the darkness of night, no evader shall leave proof of these activities. Once fraudulent intent to evade is manifested and later confessed, proving such evasion by other activities which are not recorded, will be giving a bonus to the evader. As per Supreme Courts judgement in D.Bhoormull-1983 (13) ELT 1546 (SC) case, Department is not required to prove its case with mathematical precision, but what is required is the establishment of such a degree of probability that a prudent man may on its basis believe in the existence of facts in the issue.

24. In the present case, it is very clear admittance of clandestine removal and which is later also confirmed by authorised signatory without any pressure and duress and later voluntary payment of duty is paid, this clearly proves the exact nature of offence. If they would have any grievance force and forceful confession, they would have taken up the matter with higher authorities, but nothing was done. Actually balance amount of payment was also deposited after a gap of four months. Further, they private records of production and clearance were owned by them. Thus after two years, there could be no issue of retraction. Statement of Shri Praveen Kumar recorded on 9.8.2003 is merely an afterthought as he has already admitted in his statement dt.4.10.2001. The said statement of 4.10.2001 was voluntary in nature and it was never retracted on the plea that same was obtained by coercion or extortion. Actually facts were in their personal knowledge and there was no duress to conclude that confessional statements were not fair. Further there are indication of manipulation of records as after proper confirmation of evasion and alter payment of duty in two instalments, attempt has been made to manipulate the records with clear intention to defraud government revenue.