ORDER
P.S. Bajaj, Member (J)
1. The above captioned appeals have been directed against the common order-in-original vide which duty and penalties as detailed in the impugned order, have been confirmed against the appellants for the period April to June, 1997 and October, 1997 to December, 1997.
2. The appellants during the above said period were engaged in the manufacture of finished as well as unfinished fabrics which were exempt from payment of duty till 4-3-96 in terms of Notification No. 40/95, dated 16-3-95. However, that notification was later on amended and the fabric on which sewing process was carried out by the assessee, was made dutiable. The appellants continued manufacturing and clearing processed well as unprocessed fabrics after this amendment. They had been putting in common lot numbers on the lots of the goods for identification purposes. The factory premises of the appellants were raided by the Customs officers on 9-12-97 and some lots of the goods were seized by them. The statements of the buyers and of the supervisors of the appellants factory, were also recorded. Thereafter, show cause notice dated 17-6-98 was served on the appellants. But after adjudication, the demand was dropped against them vide order dated 24-2-99 by the adjudicating authority. That order of the adjudicating authority was accepted by the Department.
3. However, during the course of those proceedings, the Counsel for the appellants in his written submissions, mentioned that except lot Numbers 4271, 4230, 6842, 8004, 2088, the other lots of the fabrics were cleared on payment of duty as finished goods. On the strength of this disclosure by the Counsel, fresh show cause notice dated 2-5-2001 resulted in the passing of the impugned order by the adjudicating authority was served on the appellants raising the duty demand calculated on the basis of clearances made during that period of the finished fabrics by them.
4. We have heard both sides and gone through the record. We find that no fresh evidence had been collected in order to corroborate the disclosure of the Counsel in his written submissions before the adjudicating authority in the earlier proceedings, which ultimately culminated in favour of the appellants. The duty amount has been calculated on the basis of clearances made by the appellants during the period in dispute. In reply to the show cause notice, the appellants had denied the allegations and did not accept the disclosure of the Counsel to be correct. They had also placed on record certain invoices to show that during that period, they had cleared the lots of unfinished fabrics also. The statements recorded and the documents seized during the course of the earlier proceedings, could not be made basis and read in evidence in the present proceedings as those proceedings culminated in favour of the appellants and the order of the adjudicating authority in that regard had been accepted by the department.
5. The disclosure made by the Counsel in his written submissions before the adjudicating authority in the earlier proceedings, in our view, was to be confined to those very proceedings and could not be made binding on the appellants in the subsequent proceedings without having corroborative, oral or documentary evidence. In this context, reference may be made to the judgment of the Hon’ble Bombay High Court in the case of Ramabai Shriniwas Nadgir v. Government of Bombay [AIR 1941 Bombay 144] wherein it has been observed that an admission by the party in pleadings in one suit, is not binding on him in another suit. Similarly, regarding the probative value of admission by the party, the Apex Court in the case of K.S. Srinivasan v. Union of India has observed that an admission is not conclusive proof of the matter admitted . Therefore, the Revenue was required to carry out the investigation and collect oral and documentary evidence before working out the liability of the appellants on the basis of the disclosure of the Counsel in the earlier proceedings. The written submissions of the Counsel, even did not bear the signatures of the appellants in taken of correctness. Therefore, the impugned order for want of tangible, cogent evidence regarding clandestine removal of the finished goods by the appellants during the period in dispute cannot be sustained and the same is set aside. The appeals of the appellants are allowed with consequential relief, as per law.
(Order dictated and pronounced in the open Court).