Dismissed

Power Control Corporation v. C C E and S T Jaipur-I

Rajasthan HC26 Nov 2018EXCIA/132/2017

Case brief

AI extract

What is this about?

This appeal challenged the Tribunal's dismissal of the appellant's challenge to an adjudication order imposing duty and penalty for clandestine removal of excisable goods. The High Court dismissed the appeal, holding that the appellant's delayed retraction of statements was an afterthought without credible evidence and that the authorities had independent corroboration.

What did the court decide?

The appeal filed by the appellant was dismissed and the judgment of the Tribunal was upheld.

Power Control Corporation Vs C C E and S T Jaipur-I — Cheque Dishonour | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D. B. Central Excise Appeal No. 132/2017

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Power Control Corporation, J-874-75, Sitapura Industrial Area, Jaipur Rajasthan through its Authorised Signatory, Mr. Ravindra Kumar Gupta S/o Late Shri Moti Chand Gupta Aged About 51 Years R/o 56, Ayuwan Singh Nagar, Durgapura, Jaipur.

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----Appellant

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Versus

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C.C.E. & S.T. Jaipur-I, NCR Building, Statue Circle, C-Scheme, Jaipur Rajasthan 302005

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----Respondent For Appellant(s) : Mr. Sanjay Jhanwar. For Respondent(s) : Mr. Siddharth Ranka.

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HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

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Judgment

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REPORTABLE 26/11/2018 (Per Hon’ble Mr. Justice Mohammad Rafiq)

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This appeal under Section 35-G of the Central Excise Act, 1944 (for short ‘the Act’) seeks to challenge the judgment dated 05.09.2017 passed by the Customs, Excise & Service Tax Appellate Tribunal, Principal Bench, Court No. 1, New Delhi (for short ‘the Tribunal’) whereby the appeal filed by the appellant was dismissed.

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The factual matrix of the case is that the appellant is a sole proprietorship firm owned and managed by Mr. Ravindra Kumar Gupta. Appellant is engaged in the business of manufacturing and trading of Electricals Industrial Cables falling under Chapter 85 of the Act. The appellant is carrying out said

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business from the premises situated at J-874, Sitapura, Jaipur. The appellant claims to run its business from the ground floor of that premises and asserts that he gave first floor of the same premises on rent to his brother Shri Ravish C. Gupta for his business. Assistant Commercial Taxes Officer, Anti Evasion, ZoneI, Jaipur conducted a survey at the said premises on 29.11.2010. According to the appellant, no incriminating document/material was found from ground floor of registered premises of the firm but later on, when the Officers visited the first floor of the said premises where the brother of the appellant was running his business, they seized various documents from there. Since the authorisation of the survey was in the name of the appellant, therefore, the seizure memos were also prepared in its name. On the basis of those documents, proceedings were initiated against the appellant by the Commercial Taxes Department, Jaipur. Later on, these very documents were also handed over to the Central Excise Department by the Commercial Taxes Department. Officers of Anti Evasion Wing, Central Excise, Jaipur-I also conducted survey at the registered premises of the appellant on 06.07.2011. During survey, certain additional documents from the registered premises of the appellant as well as from the room of Mr. Nathu Lal Jyotishi, who claimed that he was working as helper in the firm of the appellant’s brother M/s. Future Cooperation.

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After the search, the appellant was served with a show cause notice dated 27.12.2011 alleging that the appellant indulged in clandestine removal of the excisable goods without maintaining statutory records, without issuance of invoices and without payment of central excise duty. It was therefore proposed to

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demand and recover central excise duty to the tune of Rs. 1,93,67,191/- from the appellant. The appellant filed reply to the aforesaid notice on 21.01.2013 and asked for opportunity to cross examine the witnesses, whose statements were relied by the department in the show cause notice. In the interim reply, the appellant maintained that he was not engaged in any activity of clandestine removal of the excisable goods. According to the appellant-assessee, no such opportunity was provided to him and the Adjudicating Authority passed order-in-original on 07.03.2013 raising a demand of Rs. 1,93,67,191/- with equivalent amount as penalty and interest thereon. The appellant filed appeal against the aforesaid order-in-original before the Tribunal which vide impugned judgment dated 05.09.2017 dismissed the appeal. Hence this appeal.

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Mr. Sanjay Jhanwar, learned counsel for the appellant argued that the appellant also contested the proceedings before the Commercial Taxes Department by challenging the assessment order passed by the Assistant Commissioner, Commercial Taxes Department before the Rajasthan Tax Board, which vide order dated 08.01.2014 remanded the matter back to the Assessing Officer under the Rajasthan VAT Act for re-examination of the fact that whether the seized documents belonged to the appellant’s brother. The Assistant Commissioner vide assessment order dated 09.06.2015 concluded that seized documents belonged to the appellant’s brother and had no relation with the appellant. It is argued that the Tribunal failed to appreciate that the very foundation of the proceedings initiated by the Central Excise Department against the appellant was search proceedings carried

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out by the Commercial Taxes Department and when the said foundation had ceased to exist, the Tribunal in the present matter could not have mechanically upheld the order-in-original passed by the Adjudicating Authority. In any case, the Officers of the Central Excise Department were relying on the documents seized by the Commercial Taxes Department in which proceedings it was ultimately held that the documents did not belong to the appellant. The appellant also maintained before the authorities below that he is entitled to excise exemption as the goods were manufactured on job work basis. While as per the show cause notice, huge quantity of cable is alleged to have been manufactured by the appellant but production capacity and power consumption of his factory was very low therefore the said allegation is baseless.

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It is argued that the Tribunal committed grave illegality in holding that the decision of the Rajasthan Tax Board in the proceedings under The Rajasthan VAT Act would not have any bearing on the proceedings under the Excise Act. This finding of the Tribunal is wholly perversse. The Rajasthan Tax Board has taken a view about these very documents that matter required whether they pertained to the firm of the brother of the appellant M/s. Future Control Corporation and remanded the matter back to the Assessing Officer in the VAT Act. The Assessing Officer under the VAT Act accepted the plea of the appellant-assessee. Diametrically opposite view could not have been taken by the Tribunal, particularly when very initiation of the proceedings by the Excise Department was founded on the input received from the Commercial Taxes Department. The Tribunal failed to appreciate

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that Mr. Ravish C. Gupta, brother of the appellant vide letter dated 28.08.2011 submitted that the documents seized by the Commercial Taxes Department during survey dated 29.11.2010 pertained to his firm-M/s. Future Control Corporation and that he was the sole owner of the seized documents. The Tribunal committed serious illegality in deciding appeal of the appellant on the erroneous assumption that his (appellant’s) statement recorded on various dates were not retracted. The fact of the matter is that the appellant retracted his statement vide letter dated 30.11.2013, therefore, the Tribunal could not have relied on such statements.

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Learned counsel submitted that the Tribunal wrongly relied upon the statement of Nathu Lal Jyotishi as he was never associated with the appellant firm and was an employee of the appellant’s brother. Nathu Lal Jyotishi also in his affidavit dated 27.04.2013 has confirmed this fact. Therefore, demand of Rs. 64,056/- for the period 2011-2012 and denial of exemption to the appellant also ought to have been set aside by the Tribunal. The Tribunal failed to appreciate that even the loading (Mahindra Maximo), which was allegedly used in clandestine transportation of the goods, was belonging to Shri Ravish C. Gupta, brother of the appellant and not to the appellant. Documents seized from Mr. Nathu Lal Jyotishi bears signatures of Mr. Sushil Singh, driver of the vehicle. It is argued that statement of the said driver of the vehicle was also relied by the Tribunal but he in his statement not stated that he was delivering the goods of the appellant. He rather stated that vehicle was registered in the name of brother of the appellant. Thus, it is clear that the Tribunal failed to

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appreciate that further demand of Rs. 1,48,144/- for the period 2011-12 alleging clandestine removal of goods has been made on mere suspicion without any credible/documentary evidence on record establishing the details of raw material purchased, payment made, to whom finished goods were delivered and how the payment was received for the same. Central Excise Authorities have neither investigated nor verified the fact that the popularity of brand name or trade name given on the alleged goods were of other firms. Without investigating the popularity or ownership of the brand name or trade name, the conclusion that said trade name/brand name belongs to ‘others’ is baseless. Learned counsel in support of his arguments relied on the judgments of the Supreme Court in Astra Pharmaceuticals (P) Ltd. Vs. Collector of Central Excise, Chandigarh, (1995) 2 SCC 84; Commissioner of Central Excise Vs. Sandhi Threads, 2015 (321) E.L.T. 180 (S.C.) and judgment of the Customs, Excise and Gold (Control) Appellate Tribunal South Zonal Bench, Chennai in Commissioner of C. Ex. Vs. Turnbull Control System (I) Ltd., 2001 (97) ECR 146 (Tri.-Chennai) .

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Mr. Sanjay Jhanwar, learned counsel submitted that the Tribunal has also failed to appreciate that if the extent of production is estimated on the basis of power consumption in the factory premises of the appellant, its worth would be less than 1.5 crores in each financial year, which also proves that there was no clandestine removal of goods. It is argued that the appellant was not afforded opportunity to cross-examine the witnesses whose statements were relied. Relying on the judgment of Delhi High Court in Flevel International Vs. Commissioner of Central

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Excise, 2016 (332) ELT416(Del.) , learned counsel argued that denial of opportunity to cross-examine the witness, whose statement has been relied upon in the adjudication order would vitiate the order of adjudication. Learned counsel argued that case of clandestine removal of goods has to be made out on facts which finds corroboration from the material on record. Since there is no corroboration in the present case, adjudication order passed by the Adjudicating Authority and the judgment passed by the Tribunal are wholly illegal. In support of this argument, learned counsel placed reliance on the judgment of the Supreme Court in Central Bureau of Investigation Vs. V.C. Shukla & Others, (1998) 3 SCC 410 ; judgment of Gujarat High Court in Commissioner of Central Excise Vs. Omkar Textile Mills Pvt. Ltd., 2010 (259) ELT 687 (Guj.) and judgment of Jharkhand High Court in Mahabir Prasad Rungta Vs. Office of the Commissioner of Income Tax (Appeals), Ranchi & Another, 2014 (7) AJR 139 . Lastly, it is argued that the Commissioner of Customs has erred in imposing penalty of Rs. 1,93,67,191/- on account of Section 11AC of the Act read with Rule 25 of the Central Excise Rules. Penalty can be imposed on any manufacturer if it removes any excisable goods in contravention of any provisions of the Act. Since the appellant was not engaged in any such activities, no penalty could not have been imposed.

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Mr. Siddharth Ranka, learned counsel for the

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respondent-Revenue opposed the appeal and supported the orderin-original passed by the Adjudicating Authority and the judgment passed by the Tribunal. He argued that even though proceedings were instituted by the Excise authorities on the basis of inputs

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received from the VAT authorities, but thereafter Excise authorities themselves conducted survey of the factory premises of the appellant. Statement of the appellant Ravindra Kumar Gupta under Section 108 of the Act was recorded on as many as seven dates. This statement was not retracted by any procedure known to law. The Excise authorities have found independent corroboration to his testimony from various statements, documents and other material. Learned counsel, in support of his arguments, has cited judgment of the Supreme Court in Ram Lal Vs. State of Himachal Pradesh (Criminal Appeal No. 576 of 2010 decided on 03.10.2018) and judgment of this Court in M/s. Bannalal Jat Constructions Pvt. Ltd. Vs. ACIT, Central Circle-2, Ajmer (D.B. Income Tax Appeal No. 140/2018 decided on 31.08.2018).

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Upon hearing learned counsel for the parties and perusing the material on record, we find that the Adjudicating Authority as well as the Tribunal after examining the factual matrix of the case have recorded concurrent finding that levy of central excise duty and the consequential interest and penalty on the appellant has rightly been imposed. There was sufficient material for arriving at the finding that the appellant was engaged in clandestine removal of excisable goods. Adjudicating Authority has also levied penalty of Rs. 2,00,000/- on the brother of the appellant Shri Ravish Chandra Gupta, who although preferred appeal thereagainst before the Tribunal, which was also dismissed by common order along with appeal of the appellant herein but he chose not to further challenge the judgment of the Tribunal before this Court. In fact, the assessee-appellant filed application for

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rectification of mistake before the Tribunal. However, after objection by the respondent before this Court, the appellant did not press that application. Detailed statement of the assesseeappellant under Section 108 of the Act in this case was recorded on as many as seven different dates; namely on 06.07.2011, 07.07.2011, 14.07.2011, 09.08.2011, 18.11.2011, 12.12.2011 and 15.12.2011. Till the last statement was recorded, the appellant-assessee continued to reiterate that earlier statements were given without any pressure. Despite repeated notice sent to brother of the appellant by Excise authorities on 25.08.2011, 05.09.2011 and 15.09.2011, he did not appear before the Central Excise Authorities to depose before them. Although affidavit of brother of the appellant dated 29.08.2011 was filed by the appellant himself nine months after the survey by the sales tax authorities and two months after the survey carried out by the Central Excise Authorities wherein it was for the first time stated by him that he was carrying out trading and job work independently. But brother of the appellant in his affidavit nowhere mentioned that he was also engaged in manufacturing activities.

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Adverting now to the retraction of the appellant, initial retraction was made by the appellant by sending a written letter addressed to the Commissioner, Central Excise dated 30.11.2011 but this was not supported by any affidavit. In this retraction letter, he stated that he gave the statement due to mental pressure created by Officers of Central Excise Department, who called him for about 10-12 times from 06.07.2011 to 29.11.2011. This letter of retraction was given five months after the first

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statement. The appellant therein did not utter a single word that the transactions were relating to his brother. Even after the letter of retraction was given on 30.11.2011, statement of the appellantassessee was again recorded on 12.12.2011 wherein also he reiterated his earlier statement and stated that he gave the earlier statements without any pressure. Thereafter again on 15.12.2011 his statement was recorded on seventh consecutive occasion, wherein he reiterated his earlier statement and stated that earlier statements were given by him without any pressure.

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This court in CIT, Bikaner Vs. Ravi Mathur, 2017 (1) WLC (Raj.) 387 , after considering catena of previous decisions, held that the statements recorded under Section 132(4) of the IT Act have great evidentiary value and they cannot be discarded summarily and cryptic manner, by simply observing that the assessee retracted from his statement. One has to come to a definite finding as to the manner in which the retraction takes place. Such retraction should be made as soon as possible and immediately after such statement has been recorded by filing a complaint to the higher officials or otherwise brought to the notice of the higher officials by way of duly sworn affidavit or statement supported by convincing evidence, stating that the earlier statement was recorded under pressure, coercion or compulsion. We deem it appropriate to reproduce para 15 of the said judgment, which reads thus,

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“15. In our view, the statements recorded under Section 132(4) have great evidentiary value and it cannot be discarded as in the instant case ITA No.720/JP/2017 M/s Bannalal Jat Construction Pvt. Ltd., Bhilwara vs. ACIT, Central Circle-Ajmer by the Tribunal in a summary or in a cryptic manner. Statements recorded under Section

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132(4) cannot be discarded by simply observing that the assessee retracted the statements. One has to come to a definite finding as to the manner in which retraction takes place. On perusal of the facts noticed hereinbefore, we have noticed that while the statements were recorded at the time of search on 9.11.1995 and onwards but retraction, is almost after an year and that too when the assessment proceedings were being taken up in November 1996. We may observe that retraction should be made as soon as possible and immediately after such a statement has been recorded, either by filing a complaint to the higher officials or otherwise brought to the notice of the higher officials, either by way of a duly sworn affidavit or statements supported by convincing evidence through which an assessee could demonstrate that the statements initially recorded were under pressure/coercion and factually incorrect. In our view, retraction after a sufficient long gap or point of time, as in the instant case, loses its significance and is an afterthought. Once statements have been recorded on oath, duly signed, it has a great evidentiary value and it is normally presumed that whatever stated at the time of recording of statements under Section 132(4), are true and correct and brings out the correct picture, as by that time the assessee is uninfluenced by external agencies. Thus, whenever an assessee pleads that the statements have been obtained forcefully/by coercion/undue influence without material/contrary to the material, then it should be supported by strong evidence which we have observed hereinbefore. Once a statement is recorded under Section 132(4), such a statement can be used as a strong evidence against the assessee in assessing the income, the burden lies on the assessee to establish that the admission made in the statements are incorrect/wrong and that burden has to be discharged by an assessee at the earliest point of time and in the instant case we notice that the AO in the Assessment Order observes:-

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"Regarding the amount of Rs. 44.285 lakhs, it is now contended that the statement u/s 132(4) was not correct and these amounts are in ITA No.720/JP/2017 M/s Bannalal Jat Construction Pvt. Ltd., Bhilwara vs. ACIT, Central Circle-Ajmer thousands, not lakhs i.e. it is now attempted to retract from the statements made at the time of S & S operations."

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Therefore, what we gather from the Assessment Order and on perusal of the above finding that the retraction was at the stage when the assessment proceedings were being finalized i.e. almost after a gap of more than an year. Such a so-called retraction in our view is no retraction in law and is simply a self-serving statement without any material.”

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The Punjab and Haryana High Court in Commissioner of Income-Tax Vs. Lekh Raj Dhunna – (2012) 344 ITR 352 , taking note of the fact that the assessee had made a statement under Section 132(4) of the IT Act whereby a surrender of Rs.2 lakh was made and further that the assessee had admitted that he had earned commission from a party, which was not disclosed in the return filed by him and certain documents were seized which bore the signature of the assessee, in para 16 of the report held as under:-

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“16. Thus, in view of sub-sections (4) and (4A) of Section 132 of the Act, the Assessing Officer was justified in drawing presumption against the assessee and had made addition of Rs.9 lakhs in his income under Section 68 of the Act. The onus was upon the assessee to have produced cogent material to rebut the aforesaid presumption which he had failed to displace. The assessee retracted from the said statement, vide letters dated November 24, 1998, and March 11, 1999, during the course of assessment proceedings. However, no value could be attached thereto in the present case. In case the statement which was made by the assessee at the time of search and seizure was under pressure or due to coercion, the assessee could have retracted from the same at the earliest. No plausible explanation has been furnished as to why the said statement could not be withdrawn earlier. In such a situation, the authenticity of the statement by virtue of which surrender had been made at the time of search cannot be held to be bad. The Tribunal, thus, erred in concluding otherwise. The Tribunal, therefore, was not justified in reversing the order of the Assessing Officer which was affirmed by the Commissioner of Income-tax (Appeals) also.”

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The Punjab and Haryana High Court in Bachittar Singh Vs.

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Commissioner of Income-Tax and Another – (2010) 328

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ITR 400 , in para 7 of the report, held as under:-

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“7. It is not disputed that the statement was made by the assessee at the time of survey, which was retracted on May 28, 2003, and he did not take any further action for a period of more than two months. In such

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circumstances, the view taken by the Tribunal that retraction from the earlier statement was not permissible, is definitely a possible view. The mere fact that some entries were made in a diary could not be held to be sufficient and conclusive to hold that the statement earlier made was false. The assessee failed to produce books of account which may have been maintained during regular course of business or any other authentic contemporaneous evidence of agricultural income. In the circumstances, the statement of the assessee could certainly be acted upon.”

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The High Court of Kerala in The Commissioner of Income Tax Vs. O. Abdul Razak – (2013) 350 ITR 71 , in para nos.8, 9 and 10 of the report, held as under:-

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“8. It cannot be doubted for a moment that the burden of proving the undisclosed income is squarely on the shoulders of the department. Acquisition of properties by the assessee are proved with the documents seized in search. Since under statement of consideration in documents is the usual practise the officer questioned the assessee on payments made over and above the amounts stated in the documents. Assessee gave sworn statement honestly disclosing the actual amounts paid. The question now to be considered is whether the sworn statement constitutes evidence of undisclosed income and if so whether it is evidence collected by the department. In our view the burden of proof is discharged by the department when they persuaded the assessee to state details of undisclosed income, which the assessee disclosed in his sworn statement, on being confronted with the title deeds seized in search.

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Section 132 of the Income tax Act deals with search and seizure and sub-Section (4) of Section 132 empowers the authorised officer during the course of the search and seizure to examine on oath any person who is found to be in possession or control of any books of account, documents, money or valuable articles or things etc. and record a statement made by such person which can be used in evidence in any proceedings under the Income Tax Act. The explanation appended to Clause (4) also makes it clear that such examination can be in respect of any matters relevant for the purpose of any investigation and need not be confined to matters pertaining to the material found as a result of the search. A plain reading of Section 132(4) would clearly show that what was intended by empowering an officer conducting the search to take a

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statement on oath was to record evidence as contemplated in any adjudication especially since Section 131 confers on all officers empowered therein with the same powers as vested in a court under the Code of Criminal Procedure, for the purpose of the Income Tax Act.

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A Division Bench of this Court in C.I.T. v. Hotel Meriya, (2011) 332 ITR 537 considered the scope of a statement recorded under Section 132(4) and found that such statement recorded by the officer as well as the documents seized would come within the purview of evidence under Section 158(BB) of the Income-tax Act read with Section 3 of the Evidence Act and Section 131 of the Income Tax Act. Based on the above finding, it was also held that such evidence would be admissible for the purpose of block assessments too. The explanation to Section 132(4) of the Income Tax Act was also noticed by the Division Bench to further emphasise that the evidence so collected would be relevant in all purposes connected with any proceedings of the Income Tax Act.”

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The Allahabad High Court in Dr. S. C. Gupta Vs. Commissioner of Income-Tax – (2001) 248 ITR 782 , in para

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7 of the report, held as under:-

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“7. As regards the assessee’s contention that the statement having been retracted the Assessing Officer should have independently come to a conclusion that there was additional income as sought to be assessed and that there was no material to support that there was such income, this contention in our view is not correct. As held by the Supreme Court in Pullan-gode Rubber Produce Co. Ltd. v. State of Kerala, (1973) 91 ITR 18 an admission is an extremely important piece of evidence though it is not conclusive. Therefore, a statement made voluntarily by the assessee could form the basis of assessment. The mere fact that the assessee retracted the statement could not make the statement unacceptable. The burden lay on the assessee to establish that the admission made in the statement at the time of survey was wrong and in fact there was no additional income. This burden does not even seem to have been attempted to be discharged. Similarly, P.K. Palwankar v. CGT, [1979] 117 ITR 768 (MP) and CIT v. Mrs. Doris S. Luiz, [1974] 96 ITR 646 (Ker) on which also learned counsel for the assessee placed reliance are of no help to the assessee. The Tribunal’s order is concluded by findings of fact and in our view no question of law arises. The applications are, accordingly, rejected.”

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This Court in M/s. Bannalal Jat Constructions Pvt. Ltd.

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(supra) was also dealing with cases where statement of retraction was made with delay and the same was not accepted and the appeal filed by the assesses-appellant therein was dismissed by this Court. The aforesaid judgment in M/s. Bannalal Jat Constructions Pvt. Ltd. (supra) was further followed by this Court in Pr. Commissioner of Income Tax (Central), Jaipur Vs. Shri Roshal Lal Sancheti (D.B. Income Tax Appeal No. 47/2018 decided on 30.10.2018) and the appeal filed by the appellant therein was also dismissed.

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Significantly enough, when the assessee filed reply to show cause notice on 21.01.2013, he for the first time made reference to the affidavit of his brother but did not make any reference to his retraction letter dated 30.11.2011. It is thus clear that the statements of the appellant were recorded on as many as seven occasions during the period of six months, but he could not give any satisfactory answer to the different queries posed to him. If at all he was not doing this kind of business, he could have pleaded ignorance. In none of the statements, he asserted that the business pertains to his brother. Such stand was not taken by him even before the Sales Tax Officials in his own affidavit. Examined from another angle, even the brother of the assessee namely Ravish C. Gupta, who now claime to be real owner of the business, never turned up before the Central Excise Authorities despite being summoned repeatedly. In his affidavit produced by the appellant, he only stated that he was carrying out trading and job work and did not assert that he was engaged in

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any manufacturing activities. In the statement recorded on several occasions, the assessee admitted that he was carrying on manufacturing activities but he did not assert that any part of the premises was given on rent by him to his brother for his business or his brother was carrying any business from first floor of the same premises. He rather admitted having short paid the duty and that they were manufacturing other’s brand as per the customers’ requirements. He stated that their brand was “Power Control” only. Even if it was a job work, customers would normally take their pulles/plates back after their manufacturing activity is complete. Appellant failed to give any explanation with regard to 11 pullies/plates of different brands found in his premises during the course of search. The assessee admitted that in the bills issued by him brand names of the customers was not mentioned. He rather admitted that most of the business was in cash and no bills were issued. He also stated that only his unit was working from the premises and no other unit was working from the same premises. He never stated that the documents seized by the Sales Tax Department belonged to his brother or that he was ever under the impression that search was carried out at his brother premises.

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With regard to the orders received from other customers, stand of the appellant was that such orders were received on phone and no agreement was entered into between his concern and the customers. He confirmed seizure of the lose slips from his premises by the sales tax authorities as also the fact that goods were being manufactured without paying central excise duty. The assessee in his statement also admitted that raw

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material of copper wire was purchased in cash and after manufacturing, power cable they were sold without invoices. The details mentioned in the ‘kachi parchies’ (lose papers) were not accounted for tax. He also admitted that the premises was shown to have been given on rent to Power Flex due to problem in TIN number, whose proprietor was also the assessee. All these factors were posed to the assessee in show cause notice, but he failed to give any satisfactory explanation. His statements were therefore rightly read by the Adjudicating Authority. Post search material also found corroboration from the material gathered from some of the customers, who accepted manufacturing of their brand by the assessee. The assessee could not contradict these facts, as he failed to file affidavit of his helpers, transporters and customers. On the contrary, in his statement he agreed that he did not comply with the Central Excise Rules for the job work carried by him.

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The judgments relied by learned counsel for the appellant do no afford any assistance to the appellant. The assessee has raised the argument of opportunity of cross examination having not been provided to him for the first time before this Court and did not raise such argument before the Tribunal, which cannot be accepted. Argument of the appellant that his retraction statement dated 30.11.2011 was not considered by the Adjudicating Authority does not cut any ice because subsequent thereto also his statements were twice recorded wherein he made statement similar to the previous ones. Now he is raising this argument before this Court that affidavit of his brother was not considered by the Adjudicating Authority. The

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appellant has set up such plea for the first time before this Court that the premise was given on rent to his brother and his brother was wrongly shown as his Manager. The appellant has also for the first time asserted before this Court that his statements were recorded under threat, coercion and duress but no such stand was taken by him before the Tribunal.

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In view of above discussion, it is clear that there was sufficient material available before the Adjudicating Authority to hold that excisable goods were removed clandestinely as nonexcisable goods. This is also explained from the voluntarily conduct of the appellant in coming forward to admit so and to pay the excise duty to settle the matter.

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The matter was remanded back to the Assessing Officer under the Commercial Taxes Department by Rajasthan Tax Board for examination of certain documents produced before it and decide whether the transactions mentioned therein related to the appellant or not and it was concluded that the documents seized by the Commercial Taxes Department belonged to M/s. Future Control Corporation, firm of the appellant’s brother and not to the appellant, may be a matter of fact. The finding recorded by the Assessing Officer of the Commercial Taxes Department/VAT authorities does not per se bind the Adjudicating Authority under the Excise Act, which in the present case, has independently arrived at the conclusion on the basis of material before it. No doubt, such inputs provided by the VAT authorities were also initially looked into by the Excise authorities but they chose to rely on the material and evidence which they themselves gathered independent of the inputs provided to them by the VAT authorities.

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Therefore, the findings recorded by the Adjudicating Authority in the order-in-original, which were upheld by the Tribunal, cannot be said to be perverse. The so-called retraction by filing an application and that too after five months from recording of statement of the appellant cannot be considered as valid retraction in the eyes of law. It has to be castigated as an afterthought. The shifting stands taken by the appellant and his brother as also the fact that the brother of the appellant despite being summoned by the Adjudicating Authority several times did not appear before it. It was the appellant, who himself filed affidavit of his brother before the Adjudicating Authority on 29.08.2011 wherein he stated that he was carrying out trading and job work but nowhere it was mentioned that he was also engaged in manufacturing activities. It is also a fact that even after letter of retraction given by the appellant on 30.11.2011, his statements were recorded on 12.12.2011 and 15.12.2011 wherein also the appellant reiterated earlier statements and the fact that he gave earlier statements without any pressure. The Adjudicating Authority found corroboration to his statement from the material gathered during search, post search, statement of driver, some of the customers of the appellant, who admitted that they got their cables manufactured from the assessee; failure of the assessee to file affidavit of any of its helpers, workers, transporters, customers and admission of the assessee that he did not comply the requirement of the Central Excise Department for carrying out job work. All this furnished sufficient basis to the Adjudicating Authority in the present case to pass the impugned order of a reassessment. The Tribunal was fully justified in dismissing the

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(20 of 21) [EXCIA-132/2017]

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appeal of the appellant. As regards the relied judgments, it is trite that a precedent can be relied for the proposition of law it actually decides and not what can be logically deduced from it, for difference of a minor fact may make a lot of change in the precedential value of a judgment. Judgments cited by learned counsel for the appellant, in our view, do not offer any help to the appellant as they are distinguishable on facts.

¶95

The Gujarat High Court in Futura Ceramics Pvt. Limited & Another Vs. State of Gujarat & Others, (2013) 62 VST 488 (Guj.) was dealing with a case where assessment of the petitioner-dealer under Section 34 of the Gujarat Value Added Tax Act, 2003 was reopened on the premise that during the excise raid, it was revealed that the dealer had clandestinely removed goods without payment of excise duty. The Sales Tax Department, therefore, formed a belief that the value of goods plus excise duty evaded should form part of the turnover of the dealer for the purpose of tax under the Act. In those facts, it was held that if the Assistant Commissioner under VAT Act had utilised the material collected by the Excise Department including the statements of the dealer and other relevant witnesses and had come to an independent opinion that there was in fact evasion of excise duty by clandestine removal of goods, he be justified in making additions for the purpose of Act. However, no such exercise was undertaken. All that the assessing officer did was to rely on the show-cause notice issued by the Excise Department. Nowhere did he conclude that there was a case of clandestine removal of goods without payment of tax under the Act. Merely because the Excise Department issued a show-cause notice, that

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could not be a ground to resume and conclude that there was evasion of excise duty implying thereby that there was also evasion of tax under the Act. In the present case, ratio of aforesaid case can be applied in the sense that herein the Excise authorities have not merely acted on the inputs provided by the Commercial Taxes Department but it has itself carried out search in the business premises of the appellant and recorded his statement and collected various other material and then arrived at an independent conclusion.

¶98

In view of above discussion, we do not find any infirmity in the order-in-original passed by the Adjudicating Authority as also judgment passed by the Tribunal. The appeal is therefore dismissed. The substantial questions of law framed by this Court vide order dated 08.08.2018 are answered accordingly.

¶99

(GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J

¶100

Manoj

Power Control Corporation v. C C E and S T Jaipur-I

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Power Control Corporation v. C C E and S T Jaipur-I

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