Commissioner of Cus. and C. Ex. vs Shivam Synthetics

Abhilasha Kumari, J.—Appellant-Revenue has filed this appeal challenging order dated 3-9-2007 passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad in Appeal No. E/238/2006 [2009 (233) E.L.T. 232 (Tribunal)], by proposing the following question:

Whether in the facts and circumstances of the case, the Tribunal has substantially erred in disallowing Revenue''s appeal when it is a settled law that confessional statements have evidentiary value?

The respondent-assessee was engaged in the manufacture of Polyester Textured Yarn. Officers of the Preventive Unit of the appellant-Department visited the factory premises of the respondent on 6-1-2000. for the purpose of checking. The physical stock of POY and Textured /Crimped Yarn was verified and it was found that the same did not tally with the record. During the course of checking, the statement of the partner of the Unit was recorded wherein it was stated that the respondent-assessee used antistatic oil in the manufacture of the final product, and had obtained 1.5% oil gain in the final production. Pursuant to issuance of show-cause notice dated 24-12-2002, the Adjudicating Authority found that the assessee was liable to pay excise duty. The order of the Adjudicating Authority was set aside by the Commissioner (Appeals), vide order dated 18-9-2006. Aggrieved thereby, the appellant approached the Tribunal by filing an appeal, resulting in passing of the order, impugned herein.

Mr. Y.N. Ravani, learned Counsel for the appellant has reiterated the stand taken by the Revenue before the Adjudicating Authority. The Tribunal has placed reliance upon the reasons adopted by Commissioner (Appeals) while setting aside the order of the Adjudicating Authority, by extracting the relevant part of the order of the Commissioner (Appeals), which reads as under:

Now, I take up the case for final disposal. I find that the whole case is built on the statement of Shri Yadav wherein he stated that they have obtained 1.5% of oil gain due to use of antistatic oil in the production of textured/crimped yarn which was cleared without payment of duty in open market. I find that the department has theoretically determined the alleged production on the basis of the statement of Shri Yadav. This is without any further corroboration. It appears to me that there cannot be fixed gain, if at all there be. There is neither record of use of oil nor any other evidence, which suggested that stated gain of 1.5% is realistic. The adjudicating authority in his findings has not discussed single aspect of the case and merely confirmed the duty. It is totally a non-speaking order, which cannot sustain.

On the basis of the above, the Tribunal has found that this is not a case where any private records indicating the actual production or clearance in excess of what has been accounted for in the statutory records, were recovered. The finding of the Commissioner (Appeals) to the effect that there was no record of use of oil or any other evidence supporting the estimate of gain of 1.5% in production, has been upheld by the Tribunal on the basis of evidence on record.

In fact, no authority has stated that a confessional statement has no evidentiary value as proposed in the question.

As the Tribunal has arrived at its findings after considering available material on record, there is no justifiable reason to interfere with the same.

No question of law, as proposed or otherwise, much less a substantial question of law, arises for the consideration of the Court. The appeal is therefore, dismissed.