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2022 (5) TMI 561 - AT - Central ExciseCross-examination of witnesses - Relevancy of statements under certain circumstances - whether the witnesses examined at the stage of investigation be allowed to be cross examination by the appellant? - Section 9D of Central Excise Act - HELD THAT:- A plain reading of sub-section (1) of Section 9D of the Act makes it clear that clauses (a) and (b) of the said sub-section set out the circumstances in which a statement, made and signed by a person before the Central Excise Officer of a gazetted rank, during the course of inquiry or proceeding under the Act, shall be relevant for the purpose of proving the truth of the facts contained therein - Section 9D of the Act came in from detailed consideration and examination, by the Delhi High Court, in J & K CIGARETTES LTD. & ORS. AND M/S. GTC INDUSTRIES LTD VERSUS COLLECTOR OF CENTRAL EXCISE & ORS. [2009 (8) TMI 64 - DELHI HIGH COURT] clearly holds that by virtue of sub-section (2) of Section 9D, the provisions of sub-section (1) thereof would extend to adjudication proceedings as well - There can, therefore, be no doubt about the legal position that the procedure prescribed in sub-section (1) of Section 9D is required to be scrupulously followed, as much in adjudication proceedings as in criminal proceedings relating to prosecution. In the present case, the witness has time and again reiterated that the appellant has never been involved in the alleged clandestine removal. He has tried to explain the shortage as was noticed at the time of physical verification of the stock - he has specifically mentioned that production records are maintained by production units, hence, shall be available there. The separate invoice for captive consumed sponge iron and MS ingots has specifically been denied to be generated. Weighment slips were used to be made manually with no record thereof has been mentioned specifically to answer absence of weightment slips. To test the veracity of these submissions in the light of simultaneous acknowledgement to deposit the differential duty demanded, it is opined that interest of justice shall best be served when this witness is cross examined and his testimony is relied upon after following the procedure of aforementioned section 9D of the Central Excise Act. In addition it is apparent that granting such a permission will in no circumstance be prejudicial to the interest of the Department, except in the case of the cross examination of the Departmental witnesses. The original adjudicating authority shall be cross examining the witness and it is thereafter denovo adjudication of the impugned show cause notice be conducted by Original Adjudicating Authority - appeal allowed by way of remand.
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