Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2020 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (1) TMI 267 - AT - Central ExciseClandestine removal - grey fabric - reliability on statements - cross-examination of persons - Section 9D of the Central Excise Act, 1944 - HELD THAT:- The adjudicating authority was required to record a finding on the request of cross examination as per the provisions of Section 9D, and then could have proceeded to rely or discard the statements relied upon by the revenue in the adjudication proceedings - It is not the case the adjudicating authority had not found the request for cross examination irrelevant in the adjudication proceedings, he himself had allowed. It appears that adjudicating authority has in the first instance allowed the request of cross examination and fixed the date for cross examination on 22.4.2008. However since the cross examination did not happen on the appointed day he held the same to be irrelevant. In terms of Section 9D referred above, cross examination is necessary to establish the relevance of statements recorded during the investigation proceedings. Once it is found that cross examination is required for establishing the truth and relevance of the statement recorded it should be allowed, and only after cross examination the statement can be admitted as an evidence in the proceedings - Once adjudicating authority/Commissioner (Appeals) find that cross examination was required, then before admitting any statement in evidence, they should allow/ extend opportunity for cross examination. There are no merits in the findings recorded by the adjudicating authority/ Commissioner (Appeal) that the opportunity was extended and since cross examination was not done on the appointed date, the bar of Section 9D has been successfully crossed. While making this observation, we are not observing that appellant could prolong the adjudication proceedings indefinitely by making the request for cross examination a then choosing not to appear on the day appointed for cross examination. In the present case after allowing the request for cross examination, adjudicating authority has proceeded to adjudicate the case without putting the appellant on notice just for the reason that hearing fixed for cross examination, did not happen on the appointed day - the matter needs to be remanded back to adjudicating authority for considering the request for cross examination made by the appellants, and only after recording reason for permitting or disallowing cross examination proceed with the adjudication proceedings - appeal allowed by way of remand.
|