Pradeep Jain - Chartered Accountant

PJ/Case Laws/2009-10/18

Case Laws

Central Excise Section:

Case: - Commissioner of C. Ex., Aurangabad v/s Rohit Industries Ltd

Citation: - 2009 (242) ELT 240 (Tri-Mumbai)

Issue: - When the internal audit conducted by the department then whether extended period can be invoked on supply of free moulds and dies on loan basis?

Brief Facts: - Respondent-assessee received free moulds and dies from M/s Baja Auto Ltd on loan basis for manufacturing different parts of motor vehicles. But their value was not included in the parts/components manufactured. Department issued show cause notice dated 27.02.99 demanding duty for the period from Oct, 95 to Mar, 99 under the proviso of Section 11A (1) of the Central Excise Act, 1944. Another SCN was issued for the period April, 99 to May, 99. The Adjudicating Authority confirmed both the demands. The Commissioner (A) set aside the order demanding differential duty for the extended period. Revenue has come up against this order before the Tribunal.

Appellant’s Contentions: - Revenue contended that the respondents had not furnished the details of receipt of moulds and dies by them in the factory premises. It was their duty to inform the Department about every free supply. Therefore, provisions of Section 11A (1) were rightly invoked against them.

Respondent’s Contentions: - Respondent contended that there was no suppression of facts as during the disputed period, various audits were conducted by the department officers and they had checked the stock as well as statutory record but nothing was notices by the Audit party. It is submitted that duty was paid on the moulds and dies by M/s Baja Auto Ltd.

Reasoning of Judgment: - The Tribunal relied upon the findings of the Commissioner (A) wherein it was held that the appellants had duly informed the authorities about receipt of disputed goods from M/s Baja Auto Ltd. The internal audits were periodically conducted by the Department and no objection was raised by them during the course of audit of records. Therefore there was no suppression of facts and extended period under section 11A could not be invoked. It was also noted by the Commissioner (A) that the decision of Larger Bench in Mutual Industries Ltd case in March 2000 had clarified the law on inclusion of amortized cost of moulds and dies in assessable value.

The Tribunal held that the Revenue had not brought out any specific evidence on record about suppression of facts. The findings of the Commissioner (A) regarding periodical audits and no objection raised therein, was not denied by the Revenue. Since there were no adverse audit paras raised on the issue during audit, Revenue failed to prove the case of suppression etc against the respondent. Order of the Commissioner (A) was correct, well reasoned and does not suffer from any infirmity.

Decision: - Appeal rejected.

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Case: - Yogeshwar Nagari Patsanstha Ltd v/s Asstt. Commissioner, Central Excise, Pune-3

Citation: - 2009 (242) ELT 218 (Bom)

Issue: - Whether there is any liability on property sold which is already attached by custom authorities?

Brief Facts: - The property-in-question was attached by the Customs Authority in January, 2004 for recovery of their dues. In other proceedings initiated by a co-operative bank for recovery of its dues against the owner, the recovery certificate was granted in favour of the creditor by Recovery officer. The property was attached and was sold to petitioner on 15.04.04.

Reasoning of Judgment: - The Tribunal held that the property purchased by the petitioner was subject to the prior attachment of the Customs Authority. Therefore, order passed against the petitioner for recovery of customs dues has no fault.

Decision: - Petition disposed off.

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Case: - Commissioner of C. Ex. & Cus v/s Shri Ram Aluminium Pvt Ltd

Citation: - 2009 (242) ELT 202 (Bom)

Issue: - Whether the Hon’ble CESTAT was justified in setting aside the penalty imposed under Section 11AC which is required to be equal to the duty confirmed by the Tribunal?

Whether in case of clandestine removal of goods the payment of part of duty subsequently made on notice by the department prior to issue of Show cause notice can discharge the Respondent from the rigour of provisions of Section 11AC of the Central Excise Act, 1944?

Brief Facts: - Show cause notice was issued to the respondents for clandestine removal of goods. Before issuance of SCN, respondent had paid part of the differential duty demanded. The A.O. found that as balance duty was yet to be paid and demanded duty and also imposed penalty. The Commissioner (A) upheld the findings of the Adjudicating Officer. The Tribunal held that the offence was clearly established however, considered the findings of larger bench in the case of Machino Montell (I) Ltd [2006 (202) ELT 398 (P&H)] that if duty is payable by the assessee before the issuance of SCN no penalty can be impugned under Section 11AC and no interest can be demanded under Section 11AB. The Tribunal set aside the penalty and interest demanded but upheld the demand of duty. Revenue has filed this appeal before the High Court against the order of the Tribunal.

Appellant’s Contentions: - Revenue relied upon the judgments given in Union of India v Dharmendra Textile Processors [2008 (231) ELT 3 (SC)] and in Union of India v/s M/s Rajasthan Spinning & Weaving Mills [2009 (239) ELT 3 (SC)] and submitted that the Tribunal has no jurisdiction to impose lesser penalty than the duty adjudicated to be payable. It was also submitted that mere payment of duty before the issuance of SCN is also of no consequence.

The Amicus Curiae contended that in order to impose penalty two predicates are required to be satisfied. They are – firstly, the duty has to be determined under sub-section (2) of Section 11A and secondly, that the duty was not paid with an intent to evade payment. If both these conditions are satisfied then penalty can be imposed under Section 11AC. It was contended that the judgment of Rajasthan Spinning & Weaving Mills case was silent on the first requirement and the said judgment could not be held to have concluded the issue on there being a need for determination of duty under Section 11A (2).

Reasoning of Judgment: - The Tribunal held that with regard to mandatory penalty, the law has been concluded in Dharmendra Textile Processors. It is settled that there is no jurisdiction in the authority to impose penalty lesser than the mandatory penalty which has to be co-extensive with the duty which is payable. The Apex Court has further held that there is no requirement of existence of mens rea. Mens Rea as understood in criminal law is not an essential ingredient for holding a delinquent liable to pay penalty for a tax delinquency which is a civil obligation, remedial and coercive in its nature and is far different from the penalty for a crime or a fine or forfeiture provided as punishment for violation of criminal or penal laws.

It was held that although the Supreme Court has not expressly referred to the arguments advanced by the Amicus Curiae, nevertheless the Supreme Court was clear that to impose penalty the conditions in Section 11AC of the Act must be complied with. Under Section 11AC the requirements are firstly, there must be intent to evade payment of duty and secondly, the duty ought to be as determined under Section 11A (2). It is therefore clear that it is only on these 2 requirements being followed that penalty is imposable.

With regard to other argument that once the duty is paid even before the show cause notice, the question of the A.O. in a case where duty demanded has been paid there will be no determination of liability, it was held that the argument was fallacious. It was held that payment of amount before SCN or after issuance of SCN did not result in absence of duty determination. Both questions answered in favour of the revenue and against the respondent-assessee.

Decision: - Appeal allowed.

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Case: - M/s Indian Hume Pipe Co Ltd v/s Commissioner of Central Excise, Hyderabad-II

Citation: - 2009-TIOL-1574-CESTAT-BANG

Issue: - Whether pipes used for delivery of water for multi storage points is not for carrying water for drinking purposes? Whether the pipes for first storage point are only exempted under notification 6/2002?

Brief Facts: - The appellant had cleared pipes which were used for multi-storage points for supply of water to villages. Adjudicating Authority confirmed the demand of duty and imposed penalty on the ground that the appellant was not eligible for the benefit of Notification No. 6/2002-CE, dated 01.03.02 (as amended). The order was upheld by the Commissioner (A). Appellant has come before the Tribunal challenging the same. Stay petition for waiver of pre-deposit is filed.

Appellant’s Contentions: - Appellant contended that demand has been raised on the ground that the pipes were supplied for multi storage points and not for use upto first storage point. It is submitted that before clearance, the appellant had informed the jurisdictional Deputy Commissioner/Assistant Commissioner enclosing a certificate issued by the Collector of East Godavari District that the pipes were required for drinking water supply scheme in the villages of the said district. The appellant is also going to argue the case on limitation and he submits that the clearances were affected after informing the revenue. Appellant is going to rely upon the judgment in CCE & ST (Appeals), Hyderabad v/s M/s IVRCL Infrastructure & Projects Ltd & Anr [2009-TIOL-167-CESTAT-MUM].

Respondent’s Contentions: - Revenue contended that they will be arguing that the letters submitted to the jurisdictional AC/DC never indicated the quotation or the order issued to the applicant by Shri Satya Sai Central Trust. He is also going to draw attention to the orders placed on record. It is contended that the letter would indicate that the pipes were used for various storage facilities and for intended supply of treated water to the villages.

Reasoning of Judgment: - The Tribunal held that there was no evidence adduced in the adjudication order as regards the pipes being not used for delivery of water to storage points. The decision given in M/s IVRCL Infrastructure & Projects Ltd & Anr would cover the issue in appellant’s favour. The clearances were made after informing the revenue authorities. Thus, the appellant has made out a prima facie case for waiver of amounts confirmed by the Adjudicating Authority. Waiver of pre-deposit ordered. Recovery stayed till disposal of the appeal.

Decision: - Stay application allowed.

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Case: - CCE & C, Aurangabad v/s Gaurav Agro Pipes

Citation: - 2009 (94) RLT 725 (CESTAT-Mum)

Issue: - Whether the letters issued by buyer along with rejected goods are valid duty paying documents?

Brief Facts: - Respondents took cenvat credit on certain quantity of final products originally cleared to a customer on payment of duty and were returned to them under cover of letters, not accompanied by original invoices. The returned goods were re-processed and cleared on payment of duty. Credit was taken on the strength of covering letters. The Adjudicating Authority denied credit on the ground that the letters were not valid documents for the purpose of availment of Cenvat credit under Rule 9 of the Cenvat Credit Rules, 2004. Demand with interest was confirmed and penalty was also imposed. In appeal, the Commissioner (A) set aside the Adjudication order on the ground that there was no dispute regarding receipt of goods in their factory or its duty paid nature. Reliance was placed on judgments given in Supreme Industries Ltd v/s Commissioner of Central Excise, Chandigarh [2005 (70) RLT 492 (CESTAT-Mum)] and BAPL Industries Limited v/s Commissioner of Central Excise, Coimbatore [2006 (72) RLT 691 (CESTAT-Che.)]. Revenue has filed appeal against this order.

Reasoning of Judgment: - The Tribunal held that the cases relied upon by the Commissioner (A) were apparently distinguishable from the instant case as in the relied upon cases, the goods were returned under the cover of original invoices which were statutory documents prescribed for Cenvat credit purpose. But in instant case, the defective goods were returned under documents which were not prescribed for credit purpose. Such letters were not among the documents specified under Rule 9 for the purpose of availment of Cenvat credit.

The Tribunal held that where the rule prescribed a procedure to be followed by manufacturers of final products claiming Cenvat credit on inputs or capital goods or input services, such procedure should invariably be followed. Those who are not willing to follow such procedure cannot legitimately claim the benefit. This is the basic tenet of law recognized by the Supreme Court. The lower appellate authority has decided the case regardless of this principle.

The Tribunal held that the Commissioner (A) has allowed respondent’s appeal by following the Tribunal’s decision in aforesaid cited cases, but without attempting any discussion. No endeavourer seems to be made for getting at the ratio of any of the cited decisions by the assessee. Impugned order is not a speaking order to this extent. Impugned order set aside.

Decision: - Appeal allowed.

Comments: - In certain cases, the CENVAT credit was allowed on triplicate copy of invoice which remains with the assessee. Those decisions should have been quoted by the defence.

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Case: - Hindustan Zinc Ltd v/s CCE, Jaipur

Citation: - 2009 (94) RLT 722 (CESTAT-Del.)

Issue: - Whether the credit can be allowed on structural items of plant and machinery?

Brief Facts: - Modvat credit was denied to the appellant in respect of Load Cells, Spares for Pump and Liner Plates for Bins for discrepancy in respect of their description as given in respective invoice and as given in the declaration filed under Rule 57T. Modvat credit was denied in respect of Plates, Angles and Channels on the ground that the same are not capital goods. The Commissioner (A) did not allow credit in respect of Plates, Angles and Channels and in respect of Load Cells. The appeal before the Tribunal was dismissed. Appellant approached the High Court and matter was remanded to the Tribunal for de novo decision after considering the Appellant’s contention that the Plates, Angles and Channels are used as spares of the machinery and eligible for modvat credit.

Appellant’s Contentions: - With respect to Load Cells, Spare of Pumps and liner plates it was contended that there is no dispute that these items have been received and used and just because discrepancy between the description in the invoices and description as given in declarations filed under Rule 57T, Modvat credit was denied. Reliance was placed on the Judgments given in CCE, Delhi-III v/s A.B. Card Clothing (P) Ltd [2008 (222) ELT 359 (P& H)] and JBM Tools Ltd v/s CCE, Pune [2002 (48) RLT 117 (CEGAT-Mum)].

With respect to Plates, Angles and Channels, it was contended that these items are very much part of the machinery. This was pointed out in their reply to the SCN also that the pressure hood of Sintering machine and Condenser & furnace roof etc are made out of MS Plates, Beams & Channels and thus are basically being used as a spares of above machines. Reliance has been placed on CCE v/s Pioneer Agro Extracts Ltd [2008 (87) RLT 468 (P & H)] and UOI v/s Hindustan Zinc Ltd [2007 (214) ELT 510] which was upheld by the Apex Court as reported in 2007 (214) ELT A115 (SC).

Respondent’s Contentions: - Revenue has reiterated the findings of the Commissioner (A) and pleaded that the Cenvat credit in respect of these items has been rightly denied as while in respect of the load cells, spares for pumps and liner plates, proper declaration under Rule 57T has not been filed, the Plates and Angles and Beams/channels are not parts and accessories of the machinery installed for manufacture of the finished goods.

Reasoning of Judgment: - With regard to load cells, spares for pumps and liner plates, the Tribunal relied upon the judgments given in CCE, Delhi-III v/s A.B. Card Clothing (P) Ltd and JBM Tools Ltd v/s CCE, Pune and held that Modvat credit cannot be denied just because their description has not been correctly mentioned in Rule 57T declaration. They are eligible for credit for these items.

With regard to MS Plates, Angles, Pumps etc., the Tribunal held that the Assistant Commissioner in his order has not denied that these items are part of Sintering machine. That these items are used as structural items for manufacture of hood and roof, which are spare parts of the said machine. Reliance was placed on judgment given in CCE v/s Pioneer Agro Extracts Ltd in which it was held that with regard to old Rule 57Q of Central Excise Rules, 1944 channels, angles, joists, squares of iron and steel; which are used for installation of batch vessel, are essential parts, of plant and machinery. Accordingly, the Tribunal held that plates, angles and channels used for making hood and roof of Sintering machine are parts of plant and machinery and hence capital goods. Credit is admissible in respect of plates, angles and channels. Impugned order being unsustainable set aside.

Decision: - Appeal allowed.

Comments: - From this budget, the definition of “inputs” has been amended and these structural items are specifically excluded from the definition of “inputs”. But in this case also, it has been referred as spare parts of the plant and machinery. Following the same, whether the credit will be allowed as there is no exclusion from definition of “Capital goods”. There are two schools of thoughts on the same. One say that the exclusion from definition of “inputs” clears the intention of the Government. But other say that law is not based on intentions. The exclusion is from “inputs” and not “capital goods”. As such, the credit under definition of “capital goods” will be allowed. The decisions on this issue will clarify the position.

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Service Tax Section:

Case: - M/s Schott Glass India Pvt Ltd v/s CCE, Vadodara

Citation: - 2009-TIOL-1556-CESTAT-AHM

Issue: - Whether the service provided to a customer outside India will be termed as export of services as per recent circular of Board?

Brief Facts: - The appellant was providing service to a foreign manufacturer by procuring orders from Indian customers. The appellant was being assessed to service tax under the category of Business Auxiliary Services. Service Tax was demanded from them for the period March 2005 to March 2008. Demand was confirmed. Appellant is before the Tribunal challenging the demand.

Appellant’s Contentions: - Appellant has referred to recent Board Circular No. 111/5/2009-ST dated 24.02.09 which clarified that the location of the service receiver is important factor and not the place of performance. The phrase “inside India is to be interpreted to mean that the benefit of the service provided should accrue outside India”. It was observed that it is possible that export of service made a place even when all the relevant activities take place in India so long as the benefits of these services accrue outside India.

Reasoning of Judgment: - The Tribunal remanded the matter to the Original Adjudicating Authority for fresh decision in the light of the afore-said Circular which was not before the Commissioner as it was recently issued.

Decision: - Case remanded.

Comment: - This dispute has also arose in case of Microsoft. Whether the services provided in India to foreign customer will be termed as import of services or export of services?

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Case: - Kevin Enterprises Pvt Ltd v/s Commissioner of C. Ex., Vadodara

Citation: - 2009 (15) STR 119 (Tri-Mumbai)

Issue: - Whether there is compulsion of transfer of inputs when permission of transfer of unutilized credit on account of transfer of unit is applied?

Brief Facts: - Appellant is engaged in manufacturing plastic tower packings at Vadodara and were availing Modvat credit. They had another unit at Mumbai. The manufacturing activities were stopped at Vadodara unit and intimation was given to the Department also. In an application dated 26.12.2000 under Rule 57F (20) of the Central Excise Rules, 1944 they requested for permission to transfer the balance modvat credit to their Mumbai Unit as they intended to shift their plant and machinery to their Mumbai Unit also. The Commissioner communicated through a letter informing that the appellant’s request was not considered as there was no provision under Rule 8 of the Cenvat Credit Rules, 2001 for transfer of credit without transfer of inputs related to the credit. The same is challenged by the appellant.

Appellant’s Contentions: - It is contended that since there wee no inputs, no question of transferring of inputs could arise. Transfer of credit could not be refused under Rule 57F(20), when there was no stock of inputs as such or in process and where ownership and the inputs on which credit was availed of was duly accounted for to the satisfaction of the Commissioner. Reliance was placed on decision given in Aar Aay Products Pvt Ltd v/s CCE, New Delhi [2003 (157) ELT 40 (Tri-Del)], New Chem Industries Ltd v/s CCE, Mumbai-III [2005 (191) ELT 614 (Tri-Mum)] and APCO Industries Ltd v/s Commissioner of Central Excise, Ahmedabad-II [2004 (177) ELT 647 (Tribunal)].

Respondent’s Contentions: - Revenue submitted that the appellant did not satisfactorily account for the capital goods on which credit was availed and the mere assertion at this stage that there were no inputs, cannot be accepted. It was pointed out that in the appellant’s application, the appellant had referred to only shifting of the plant and machinery and no information was sent in connection with transfer of any stock of inputs as contemplated by Rule 57F (21).

Reasoning of Judgment: - The Tribunal held that from the communication of the Commissioner to the appellant, it appears that there was no indication as to whether the Commissioner had applied his mind for reaching the satisfaction as contemplated under sub-rule (21) of Rule 57F. No hearing was given to appellant and no speaking order was passed by the Commissioner. There was a clear lapse. It was incumbent upon the Commissioner to give specific finding in connection with appellant’s plea. Further, the question of transfer of stock of inputs could arise only if it existed in cases where capital goods on which credit has been availed have been duly accounted for. Impugned communication set aside. Matter remanded to the Commissioner for fresh consideration.

Decision: - Appeal allowed by way of remand.

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Case: - Mohtisham Complexes Pvt Ltd v/s CCE, Mangalore

Citation: - 2009 (94) RLT 219 (CESTAT-Ban.)

Issue: - Whether the service tax is payable on sale of flats after the Board circular? Whether this circular is applicable for residential construction only or to commercial or industrial construction also?

Brief Facts: - Appellants were paying service tax in respect of Commercial or Industrial Construction and Construction of Complex Service. They were availing the benefit of abatement of 67% under Notification No. 18/2005 dated 07.06.05. The period involved is from 10.09.2004 to 31.03.2006. During scrutiny of appellant’s returns by the Lower Authority and on verification of the total computation of the Service Tax for the period, they reached the conclusion that appellants had received consideration from their customers for their own projects as well as for projects entrusted to many others. It was noticed from the statement of project wise receipts that appellants were receiving an amount as an advance during 2003-04 and 2004-05 towards construction rendered in respect of complexes, which were handed over substantially after 10.06.05. After investigation, SCN was issued for denying the benefit of Notification No. 12/2003, dated 20.06.03 as well as for demand of duty with interest. Adjudicating Authority held that appellants were not eligible for the benefit of exemption Notification no. 12/2003-ST, dated 20.06.03 and confirmed the demand of service tax with interest and also imposed penalty. Appellant have filed appeal against the said order.

Appellant’s Contentions: - Appellants have referred to Board Circular No. 108/02/09-ST dated 29.01.09 wherein it was clarified that no service tax was payable if the activity arises in selling a dwelling unit in a residential complex. It was contended that most of their activity was in respect of residential premises.

Respondent’s Contentions: - Revenue has fairly contended that the activity of the residential complexes as undertaken by the appellant would be covered by the Circular dated 29.01.09 and no service tax liability will arise. At the same time the Revenue is exhorting to go to through the agreement which has been entered into by the appellant with other promoters/builders/developers. It is submitted that the issue may not be covered by the said Circular. It is fairly contended that in the impugned order bifurcation is not done of the tax amount payable by the appellant on the services rendered by him for the commercial complexes and residential complexes.

Reasoning of Judgment: - The Tribunal held that the Adjudicating Authority has confirmed the entire demand without bifurcating the amount payable by the appellant towards services rendered for the commercial complexes and for residential complexes. The Circular dated 29.01.09 was not before the Adjudicating Authority. Therefore, matter is remanded for consideration the Circular in proper perspective and also for giving a chance to appellant to provide the Adjudicating Authority with evidences as regards the services rendered towards commercial complexes and residential complexes. Impugned order set aside. Matter remanded to Adjudicating Authority.

Decision: - Appeal allowed by way of remand.

Comment: - Very good decision. No service tax is payable on sale of flats as contended in Board circular.

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Customs Section:

Case: - Gopalchand Khandelwal v/s DRI

Citation: - 2009-TIOL-535-HC-DEL-CUS

Issue: - Whether the statements of co-accused in absence of any corroborative evidence are acceptable?

Brief Facts: - The Petitioner alongwith other co-accused have been accused of being involved in smuggling of gold. In search by DRI officers of the House of Accused no. 1, gold was recovered from the scooter standing in their premises. The petitioner is the brother of accused no. 1. Petitioner has been prosecuted on the basis of statement made by accused no. 1 recorded under Section 180 of the Customs Act. The ACMM have framed charges under Section 135 (1) (b) of the Customs Act. The order of framing charges was challenged by the petitioner by way of revision petition before an Additional Sessions Judge under Section 397 of CrPC which was dismissed. Against this order, present petition has been filed under Section 482 of CrPC r/w Article 227 of the Constitution of India.

Petitioner’s Contentions: - It is contended that his case was not considered properly as his case was different from the case of other 3 accused. There was no incriminating statement under Section 108 given by him despite the fact that he was available and willing to give a statement. No recovery was made from his person or from his residence. The scooter from which gold was recovered did not belong to him. The involuntary statements made by all the other co-accused were soon retracted when they were produced before the ACMM. The medical examination report of accused persons was not considered in which their injuries were recorded. The charges have been framed against him on the basis of assumption that the statement of the petitioner was recorded under Section 180, which was never recorded. Reliance has been placed on the judgments given in Chonampara Chellappan v/s State of Kerala [AIR 1979 SC 1761], Zandu Pharmaceuticals Works Ltd & Ors v/s Mohd. Sharaful Haque & Anr [(2005) 1 SCC 122], Ravindran@John v/s The Superintendent of Customs [JT 2007 (7) SC 47] and Pradeep Kumar v/s State [1994 RLR 117].

Respondent’s Contentions: - Revenue has contended that the statement of the co-accused implicated the petitioner in respect of the crime for which co-accused was charged and the said statement recorder under Section 108 was admissible in evidence against the petitioner and could be used against him. The judgments relied upon are: Naresh J. Sukhwani v/s UOI, UOI and Anr v/s Prakash Chand Lunia and Anr, Yogenra Rai v/s NCB, Om Prakash Bakshi v/s State and Paramjit Singh v/s Commr of Customs & ors.

Reasoning of Judgment: - The High Court held that the only evidence relied upon by the respondents against the petitioner comprised of the statement made by co-accused (his brother) which was retracted. The medical report is considered in which injuries have been reported to be found on the accused no. 1. The respondent have not disputed that nothing was recovered either at the instance of the petitioner or from his person or from his premises where he was residing separately from his brother. The ACMM have proceeded on a wrong presumption that the statement of the petitioner was recorder under Section 108. The ACMM have not taken into consideration the medical report while framing charges. The Ld. ASJ has also not dealt with the said report while dealing with the revision petition. Prima facie the version of the petitioner that the statement was recorded involuntarily is supported by the findings of the Medical report.

With regard to legal position of admissibility of the statement of the co-accused persons under Section 108 and under Section 67 of the NDPS Act, it was held that the confession does not amount to proof. The court may take the confession into consideration and its evidentiary value is to be ascertained from other evidence on record. There must be other evidence also. The confession is only one element in the consideration of all the facts proved in the case. The confession is to be put into the scale and weighed with the other evidence.

The High Court held that the question whether the statement was retracted by Accused No. 1 has be seen while recording the evidence by the Trial Court but in view of the facts of the case, it is a fit case to set aside the order framing charges and the charges framed by the ACMM against the petitioner. The orders passed by ld ASJ in revision petition are also set aside. Matter remanded to ACMM to decide the case afresh by taking into consideration 2 factors: 1) The statement of petitioner was not recorded under Section 180; and 2) The allegations of Accused No. 1 that the statement made by him was retracted and it was obtained under duress.

Decision: - Petition disposed off accordingly.

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