TMI Blog2016 (7) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Mr. Raju, Member (Techncal) Shri Harishankar, Advocate for the appellant Shri B.B. Sharma, AR for the respondent ORDER The Appellants are in appeals against the impugned order. 2. The facts of the case are that the intelligence was received that the appellants, namely, M/s Alliance Alloys Pvt. Ltd. was mis-utilising the credit on the inputs, namely, virgin material, i.e. aluminium sheet/coil/C.G. Rod without receipt of the said goods. Therefore, on 20.2.2006, Central Excise Officers observed the manufacturing process and recorded the statements of director and other officers and employees of the appellant. They also searched the business premises of M/s Avon Dharma Kanta on 17.4.2006 and obtained a printout of weighment particulars. They also searched the business premises of Laxmi Wire Netting Weaving Factory, Delhi and resumed certain documents, and also recorded the statement of Ram Niwas Jain, partner. The premises of M/s Star Aluminium Corporation was also searched and the statement of Pradeep Gupta, partner was recorded. The statements of the transporters, namely, Gurinder Pal Singh of M/s Kanpur Calcutta Goods Carrier, New Delhi, Manmeet Singh o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of such third parties. The statements recorded from the personnel of the appellants are not incriminating in any manner. The statements of third parties and the evidence sought to be supported by such statements, have not been admitted in evidence in accordance with section 9D of Central Excise Act, 1944 and therefore, could not have been relied upon by the adjudicating authority. Therefore, he submitted that the said statements have no credible evidence as per section 9D of the Act. To support his contention, he relied upon the decision of Hon ble Delhi High Court in the case of J.K. Cigarettes Ltd. 2009 (242) ELT 189 (Del). 4. It is further submitted that the statements of the persons recorded under section 14 of the Act, who are not examined by the revenue in adjudication, are deemed to be given up and do not constitute relevant evidence. 5. He further submitted that as per section 138 of the Evidence Act, 1872 clearly set out the sequence of evidence, in which evidence-in-chief has to precede cross-examination, and cross-examination has to be preceded re-examination. Once adjudication and criminal proceedings have been parallelized by J.K. Cigarettes (supra) in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal hearing in the matter. Therefore, there is gross violation of the principles of natural justice as held by this Tribunal in the case of Shipra Alloys Ltd. vs. CCE-2007 (220) ELT 297, Harika Resins Pvt. Ltd. vs. CCE- 2010 (253) ELT 108 and Saraswati Rubber Works Pvt. Ltd. vs. CCE-2006 (205) ELT 993 (Tri.) and in view of the decision of Hon ble Bombay High Court in the case of Silicon Graphics Systems (India) Ltd. vs. UOI-2006(204) ELT 247 (Bom) and Hon ble Allahabad High Court in the case of Novamet Industries vs. UOI-2008 (227) 363 (All). 9. He further submitted that the appellant s request for cross examination of the witness whose statements were relied upon, against them, was rejected in the impugned order and no cross examination was allowed to the appellant. He submitted that by not allowing the cross examination of persons whose statements were sought to be relied upon is impermissible as held by Hon ble Delhi High Court in the case of Basudev/Garg vs CC-2013 (294) ELT 353 (Del) and J.K. Cigarettes Ltd. (supra). Therefore, he prayed that the impugned order is to be set aside. 10. On the other hand, learned AR supported the impugned order and submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for manufacture of the said gutka. The contention of M/s.Kuber is that they were not involved in the activity of manufacture of gutkhas and the said activity was illicit and misused of their brand name and goodwill of the appellant by certain elements who were manufacturing duplicate goods bearing M/s.Kuber brand names and clearing them in the market. The facts of the care are not in dispute, the appellants have raised the dispute that the statements recorded during the course of investigation cannot be relied upon as admissible evidence in terms of the provisions of section 9D (2) of the Act. In that circumstance, it is better to extract the provisions of section 9D which are reproduced as under:- 9-D. Relevancy of statements under certain circumstances - (1)A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings under this Act can be treated as relevant and taken into consideration if under the given circumstances such a person cannot be produced for cross-examination. Thus, this provision makes such statements relevant for the purposes of proving the truth of the facts which it contains, in any prosecution for an offence under the Act in certain situations. Sub-section (2) extends the provision of sub-section (1) to any proceedings under the Act other than a proceeding before the Court. In this manner, Section 9D can be utilized in adjudication proceedings before the Collector as well. In the present case, provisions of Section 9-D of the Act were invoked by the Collector holding that it was not possible to procure the attendance of some of the witnesses without undue delay or expense. Whether such a finding was otherwise justified or not can be taken up in the appeal. 9. In other words, in the absence of the circumstances specified in section 9D(1), the truth of the facts contained in any statement, recorded before a gazetted Central Excise officer, has to be proved by evidence other than the statement itself. The evidentiary value of the statement, in so far as proving the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff even when the plaintiff has not been examined in chief is ridiculous and not provided for under Section 138 of the Evidence Act. The Trial Court has rightly rejected the application. No scope for interference with an order of this nature. 11. We further find that in the case of Swiber Offshore Construction Pvt.Ltd. (supra), this Tribunal has further observed as under: 6. We therefore have no hesitation in holding that the impugned Order passed by the Commissioner as an adjudicating authority is appealable order in terms of Section 129A of the Act, even as per the ratio laid down in the above binding precedent. Request for cross-examination has been denied and the witnesses have not been examined despite specific reliance by the appellant on Section 138B without there being any objective formation of opinion based on any material on record to come to the conclusion that any specified circumstance mentioned in Section 138B(1)(a) exists. These circumstances mentioned in Section 138B(1)(a) are also contained in pan materia Section 9D(1)(a) and were recorded as follows in J.K. Cigarettes Ltd., 2009 (242) E.L.T. 189 (Del.) 25. Section 9D of the Act stipulates follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence in the interest of justice. 12. We further find in the case of Bussa Overseas Properties Ltd., this Tribunal again observed as under:- 24 . The fact that in cases relating to smuggling or indeed any case civil or criminal cannot or need not been proved for degree of mathematical precision or that the department governed by strict rules of evidence is again no answer, The department is certainly bound by the contents of the Customs Act, 1962 and the general principles of evidence. which has been affirmed by the Apex Court. 13. We further find that Hon'ble Punjab Haryana High Court in the case of Sukhwant Singh it has been observed as under:- 8. It will be pertinent at this stage to refer to section 138 of the Evidence Act which provides: 138. Order of examinations. - Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross- examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction for re-examination. - Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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