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TMI Blog2016 (6) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... ally similar evidence in flagrant violation of Section 9D by relying upon statements without admitting them in evidence by following the prescribed procedure contained therein. 5. The petitioners units are located in the State of Jammu and Kashmir. By virtue of the Notification 56/2002-CE dated 14.11.2002 the manufacturing unit of the Writ Petitioners are exempted from payment of duty under the Act. Under the said Notification units entitled to exemption thereunder are required to pay duty on the clearance effected by them where after refund of the said duty to the extent it has been paid otherwise than by way of utilization of Cenvat Credit i.e. to the extent it has been paid from the Personal Ledger Account (PLA) maintained by the assessee is refunded. Entitled, as it is, to the benefits of the exemption, the petitioners unit was granted refund under Notification 56/2002-CE supra, for clearances effected by it from the period November 2007 to March 2010. 6. The present proceedings essentially emanated from Show Cause Notice No. C.No.V(33)84/HQ/Adj/CE/J&K/JDL/12/1275 dated 5.11.2012 issued to the petitioners by the Commissioner under Section 11A of the Act alleging that the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein. 10. Section 9D of the Act came in from detailed consideration and examination, by the Delhi High Court, in J.K. Cigarettes Ltd. vs. CCE, 2009 (242) ELT 189 (Del). Para 12 of the said decision 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. 11. As already noticed herein above, sub-section (1) of Section 9D sets out the circumstances in which a statement, made and signed before a gazetted Central Excise Officer, shall be relevant for the purpose of proving the truth of the facts contained therein. If these circumstances are absent, the statement, which has been made during inquiry/investigation, before a gazetted Central Excise Officer, cannot be treated as relevant for the purpose of proving the facts contained therein. In other words, in the absence of the circumstances specified in Section 9D(1), the truth of the facts co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act without passing a reasoned and speaking order in that regard, which is amenable to challenge by the assessee, if aggrieved thereby. 16. If none of the circumstances contemplated by clause (a) of Section 9D (1) exists, clause (b) of Section 9D (1) comes into operation. The said clause prescribes a specific procedure to be followed before the statement can be admitted in evidence. Under this procedure, two steps are required to be followed by the adjudicating authority, under clause (b) of Section 9D (1), viz. i) the person who made the statement has to first be examined as a witness in the case before the adjudicating authority, and ii) the adjudicating authority has, thereafter, to form the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. 17. There is no justification for jettisoning this procedure, statutorily prescribed by plenary parliamentary legislation for admitting, into evidence, a statement recorded before the gazetted Central Excise officer, which does not suffer from the handicaps contemplated by clause (a) of Section 9D(1) of the Act. The use of the word "shall" in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss-examination has to precede re-examination. 21. It is only, therefore, (i) after the person whose statement has already been recorded before a gazetted Central Excise officer is examined as a witness before the adjudicating authority, and (ii) the adjudicating authority arrives at a conclusion, for reasons to be recorded in writing, that the statement deserves to be admitted in evidence, that the question of offering the witness to the assessee, for crossexamination, can arise. 22. Clearly, if this procedure, which is statutorily prescribed by plenary Parliamentary legislation, is not followed, it has to be regarded, that the Revenue has given up the said witnesses, so that the reliance by the CCE, on the said statements, has to be regarded as misguided, and the said statements have to be eschewed from consideration, as they would not be relevant for proving the truth of the contents thereof. 23. Reliance may also usefully be placed on para 16 of the judgment of the Allahabad High Court in C.C.E. V Parmarth Iron Pvt Ltd, 2010 (250) ELT 514 (All), which, too, unequivocally expound the law thus: "If the Revenue choose (sic chose) not to examine any witnesses in adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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