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2016 (8) TMI 838 - CESTAT NEW DELHI

2016 (8) TMI 838 - CESTAT NEW DELHI - TMI - Whether an appeal would lie against the decision rejecting the request for cross examination - Held that:- by following the judgement of the Hon'ble Delhi High Court in the case of J & K Cigarettes v CCE [2009 (8) TMI 64 - DELHI HIGH COURT] and Tribunal's decision in the case of Swiber Offshore Construction Pvt Ltd v CC [2013 (11) TMI 1232 - CESTAT AHMEDABAD] where it was held that it is always open to the affected party to challenge the invocation of .....

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nd argued before this Tribunal about the contention of the appellant regarding Section 9D of the Act and the manner in which it is to operate and, therefore, seeks to be provided the records of the examination-in-chief of the witnesses whose statements are referred to in the Show Cause Notice dated 16.02.2012 issued to the appellant, so that the appellant could, if necessary, seeks cross-examination of the said witnesses are no longer res-integra and stands decided by a number of authorities, mo .....

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Cause Notice strictly by complying with the mandate of Section 9D of the Act, in accordance with the directions contained in the judgment of Hon'ble High Court of Punjab & Haryana in Ambika International (supra). - Appeal disposed of - E/51875/2016-SM - 52552/2016 - Dated:- 23-6-2016 - Mr. M.V Ravindran Member (Judicial) Shri S. Sunil, Advocate for appellant Shri M.R. Sharma, AR for respondent ORDER The appellant, in the present appeal has challenged the decision taken by the Principal Commissi .....

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stine clearance and transportation of non-duty paid clandestinely cleared cigarettes of Elora Tobacco Company Ltd., and calling upon the appellant to show cause there against. Any detailed reference to the allegations in the Show Cause Notice would not be merited in the present case, however, it may be mentioned that the Show Cause Notice relied on the statements of the following persons, recorded under Section 14 of the Central Excise Act, 1944 [hereinafter referred to as "the Act"]: .....

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s, 51/104, Lal Phatak, Sakarpati, Nayaganj, Kanpur (vii) Shri Anil Khurana, Proprietor of M/s Khurana Brothers, 52/44, Nayagani, Kanpur (viii) Shri Pawan Gupta, Proprietor of M/s Pawan Gupta, 51/104, Lal Phatak Sakarpati, Nayaganj, Kanpur (ix) Shri Kotha Venkateshwarlu, the Proprietor of M/s Sri Gopala Krishna General Stores, Vijayawada, (x) Shri Shiv Narayan Kushwaha, owner of M/s Kushwaha Agro Trading Co Plot No. 1433/A, Sector-F, Industrial Area, Indore (xi) Shri Ashok Ajmera, father of Shri .....

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/104 Lal Pyatak, Sakarpatti, Nayaganj, Kanpur (xvii) Shri Chaganlal Dharmaram, Proprietor of M/s Ashapuri Marketing, 330/A, RG Street, Coimbatore (xviii) Shri P Abdul Latheef, Proprietor of M/s Harshin Enterprises, 9/419-K, Poonthala Building, Pan Bazar, Mavumkunnu Road, Tirur (xix) Shri Mangal Ram Rajm Purohit, proprietor of M/s Sri Samunda Trading Co 907, R G Street, Coimbatore and owner of M/s Samundra Trading Co 916/5, Richwell Complex, R G Street, Coimbatore (xx) Shri Satish Chandra Gupta, .....

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lot No. 3 17, Sector-F, Sanwer Road, Industrial Area (xxvi) Statement of Shri Ashish Ajmera, owner of godown situated plot No. 165/A Sector-F, Industrial area (xxvii) Shri Shyam Khemani, Director (xxviii) Statememt of Shri K. Devendrappa, Office clerk of M/s Lucky Bagga Transport Co., Hyderabad (xxix) Statememt of Shri Balbeer Singh Thakur, Office clerk of M/s Lucky Bagga Transport Co., Hyderabad (xxx) Statement of Shri Andela Krishna Yadav, Proprietor of M/S Kaleshwari Mail Lorry Service, New O .....

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ecific averment that any statement, recorded before a gazetted Central Excise officer, under the Act, would be relevant in adjudication proceedings only if the maker of the said statement was examined in chief and his cross examination is allowed. As such, it was requested, vide the said communication, that the records of examination in chief of the persons whose statements were relied upon in the Show Cause Notice dated 16.02.2012 (supra), be provided to the appellants, so that they could reque .....

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u requested to allow cross examination of Shri CSM Altaf Alam (Noticee No:6) and Shri Kotha Venkateshwarlu (Noticee No.8) On the captioned subject, the appropriate authority has observed that Shri CSM Altaf Alam and Shri Kotha Venkateshwarlu are also the co-noticees, and hence this authority cannot direct him to be present for cross examination which may cause him to incriminate himself and therefore, the request for their cross-examination is not granted. In this regard, reliance is placed on t .....

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y disposed off This issue with the approval of the appropriate authority." 5. The present appeal is directed against the said letter 03.06.2016 issued to the appellant by the Superintendent (Adjudication) purporting to communicate, to the appellant, the decision of the Commissioner, rejecting the request contained in the appellant's earlier letter dated 24.05.2016 (supra). As the adjudicating authority was proceeding with the adjudication proceeding, the appellant made a request for imm .....

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ereafter referred to as "the Act"] dealing with the appeals to the Appellate Tribunal. It was argued that the provision for appeal is very much clear inasmuch it clearly states that a decision or order taken by the adjudicating authority can be appealed before the Appellate Tribunal. 'Adjudicating authority' has been defined under the Act to mean any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs co .....

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owing judgements of the Hon'ble Tribunal in support of the contention that no appeal lies against the decision rejecting cross examination: (i) Delta Overseas v Commissioner of C.Ex & S.T v Delta Overseas, 2016 (333) ELT 126 (T) (ii) Jhaveri Polymers Pvt Ltd v CCE, 2009 (236) ELT 508 (T) 8. I have carefully considered the arguments raised by both the sides on this preliminary issue. The decisions cited by the learned DR are of this Hon'ble Tribunal. In this regard, I find that the is .....

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" 8.1 This Tribunal has also, in Swiber Offshore Construction Pvt Ltd v CC, 2014 (301) ELT 119 (T), entertained an appeal against the decision rejecting the prayer of the appellant in that case for permission to cross examine witness as an when the revenue was seeking to place reliance. Para 12 of the judgement of this Tribunal in the said case reads as under: "12. The appeals are therefore allowed with direction to the Respondent adjudicating authority to follow Section 138B and to fo .....

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Court." 8.2 Therefore, following the judgement of the Hon'ble High Court in J & K Cigarettes (supra) and this Tribunal's decision in Swiber Offshore (supra), I am of the view that an appeal is maintainable against the decision rejecting cross examination. Even as per the provisions of Section 35B of the Act read with the definition of adjudicating authority', this Tribunal has the power to entertain an appeal against the decision rejecting cross-examination. Therefore, the .....

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thority, unless and until the said statement falls within one of the categories referred to in clause (a) of Section 9D (1) of the Act in all other cases, the maker of the said statement has to be examined in chief before the adjudicating authority, who, thereafter, has to arrive at a reasoned conclusion that the statement deserves to be admitted in evidence, where after he has to offer the maker of the said statement to the assessee, for cross-examination if sought. The appellant emphasises tha .....

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t judgement dated 17.06.2016 of the Hon'ble Punjab and Harayana High High Court in Ambika International & others v UOI, on the issue of examination in chief and cross-examination as per Section 9D of the Act. The learned DR on the other side supported the decision taken by the adjudicating authority. 9. I have carefully considered the submissions made by both the parties. 9.1 A perusal of the impugned communication dated 03.06.2016 reveals that letter dated 06.06.2016 was received in the .....

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ross-examination of the said witnesses. 9.2 In fact, the issues raised by the appellant, in its letter dated 06.06.2016 and argued before this Tribunal, are no longer res-integra. They stand decided by a number of authorities, most recently, by the judgement dated 17.06.2016 of the Hon'ble Punjab & Haryana High Court in Ambika International v UOI. Section 9D of the Act reads as under: "SECTION 9D. Relevancy of statements under certain circumstances. - (1) A statement made and signed .....

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ch, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (l) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply .....

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962. Sub-Section (l) of Section 9D states that a statement, recorded before a gazetted officer of Central Excise, can be treated as relevant for the purposes of proving the truth of the contents thereof, if the case falls either under clause (a) or clause (b) thereof. Sub-Section (2) of the said Section makes the provision of sub-Section (l) applicable to adjudicatory proceedings under the Act as well, as also held by the Hon' ble Delhi High Court in para 12 of its judgment in J & K Ciga .....

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incapable of giving evidence, (iv) the person who made the statement is kept out of the way by the adverse party, and (v) the presence of the person who made the statement cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. 9.4 In case none of the above circumstances contemplated in clause (a) of Section 9D(1) applies, then clause (b) categorically mandates that the statement shall be treated as relevant for the .....

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ause categorically requires is that the person, whose statement was earlier recorded before a gazetted officer of Central Excise, has to be examined as witness before the adjudicating authority who, thereafter, has to arrive at an opinion that having regarded to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. It is only after both these steps are complied with, that the statement would be eligible for being treated as relevant in the proce .....

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ushan Bhandar v UOI, 2002 (143) ELT 25 (SC) and Swadeshi Polytex Ltd v CCE, 2000 (122) ELT 641 (SC), judgment of the Hon'ble High Court in Basudev Garg v CC, 2013 (294) ELT 353. as well as the recent decision of the Hon'ble Punjab & Haryana High Court in Ambika International (supra). 9.7 Reference may, however, be made to various judicial authorities relied upon by the appellant, which delineated the contours of Section 9D of the Act, as under: (i) In Sukhwant Singh V State of Punjab .....

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on as it does not choose to examine him in chief . 9.8 The same principle is to be found in para 9 of the judgment of the Hon'ble High Court of Karnataka in Sharadamma v Kenchamma, MANU/KA/8690/2006 (equivalent-2006 (4) KCCR 2221) which holds as under: "Even with regard to the prayer for permitting the applicant to cross-examine the plaintiff, the prayer is misconceived as the question of cross-examination arises only when a witness has tendered evidence in chief examination. Under Sect .....

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e judgement set out the operative portion thereof in the following words: "10. We therefore fmd force in the submission of the Id. counsel for the appellant. We find no reason to justify rejection of request made by the appellant to the adjudicating authority in light of Section 138B of the Act, to summon witnesses for examination and to offer them for cross-examination if their statements were to be considered as relevant and admitted in evidence in the interest of justice. 11. We also fin .....

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nce in the interest of justice. The appellant is also entitled for cross-examination of the Chief Chemist (EC), DGH. The Appellant shall also extend its full co-operation in expediting the adjudication process so that it can be completed within the time as directed by the Hon'ble High Court." 9.9 Similarly, para 16 of the judgement of the Hon'ble Allahabad High Court in CCE v Parmath Iron Pvt Ltd, 2010 (250) ELT 514 (All.) holds in a similar vein thus: "16. We, therefore, have .....

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nts are relied upon have to be made available for cross-examination for the evidence or statement to be considered. 9.10 That the principles of evidence are applicable to adjudicatory proceedings under the Act, has also been settled by the judgement of the Hon'ble Supreme Court in CC v Bussa Overseas Properties Ltd, 2007 (216) ELT 659 (SC) by upholding the order of this Tribunal in Bussa Overseas Properties Ltd v CC, 2001 (137) ELT 637 (T). 9.11 That any official action has to be done in the .....

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39;ble Tribunal in its recent orders in CCE v Kuber Tobacco Ltd v CCE [Final order No:5038-50942/2016-CHD dated 4.03.15], paras 8 to 14 of which merit reproduction as under: "8. The main contention of the appellant is that the deponents whose statements have been relied upon by the adjudicating authority were not put to examination-in-chief before providing an opportunity of cross examination. A plain reading of sub-section (l) of section 9D makes it clear that clauses (a) and (b) of the sa .....

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l proceedings relating to prosecution. Therefore, sub-section (1) of section 9D set out the circumstances in which a statement, made and signed by a person before the Central Excise Officer shall be relevant, for the purpose of proving the truth of the facts contained therein. If the circumstances are absent, therefore, the statement, which has been made during the course of inquiry/investigation, before a gazette Central Excise Officer, cannot be treated as relevant for the purpose of proving t .....

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ircumstances 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 (l) 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 th .....

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her than the statement itself. The evidentiary value of the statement, in so far as proving the truth of the contents thereof is concerned, therefore, completely lost, unless and until the case falls within the parameters of section 9D(1). Therefore, two steps are required to be followed by the adjudicating authority, under clause (b) of section 9D(1) (t) the person who made the statement has to first be examined as a witness in the case before the adjudicating authority, and (ii) the adjudicati .....

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hat the witnesses whose statements were recorded and relied upon to issue the show cause notice, are liable to be examined at that stage. If the Revenue choose not to examine any witnesses in adjudication, their statements cannot be considered as evidence. However, if the Revenue choose to rely on the statements, then in that event, the persons whose statements are relied upon have to be made available for cross-examination for the evidence or statement to be considered. 10. We further find that .....

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applicant to cross-examine the plaintiff, the prayer is misconceived as the question of cross examination arises only when a witness has tendered evidence in chief-examination. Under section 138 of the Indian Evidence Act, cross-examination follows chief-examination, but not without chief-examination. If there is no chief-examination, there is no cross examination. It is only witness who is examined in chief who can be cross-examined. Therefore, a prayer for cross-examination of the plaintiff e .....

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pealable 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) a .....

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nd (e) when his presence cannot be obtained without an amount of delay or expense, which the Officer considers unreasonable. " These circumstances show that if witness cannot be examined for any of these five reasons, the statement previously recorded would be relevant. The adjudicating authority was therefore bound to follow the binding precedent and in absence of any specified circumstance to consider the statement relevant without examining the witnesses, erred in rejecting the request o .....

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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. - The re-examination shall be directed to the explanation of .....

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nts were to be considered as relevant and admitted in 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 .....

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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. - The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. 9. It would, thus be seen th .....

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or cross-examination in session trials had been frequently resorted to since the enactment of the code of Criminal Procedure, 1898. 14. In view of the above anaylsis, it is clear that during adjudication, the adjudicating authority is required to first examine the witness in chief and also to form an opinion that having regard to the facts and circumstances of the case, the statements of the witness are admissible in evidence. Thereafter, the witness is offered to be cross examined. In the absen .....

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ated in the subsequent Final Order dated 29.04.2016, passed by this Tribunal in Alliance Alloys Pvt Ltd v CCE [Final Order No. : 343-347/2016-CHD dated 29.04.16] 9.14 Most authoritatively, perhaps, this position of law is now crystallized by the judgment dated 17.06.2016 of the Hon'ble Punjab & Haryana High Court in Ambika International (supra). Paras 15 to 34 thereof are reproduced as under: 15. A plain reading of sub-section (1) of Section 9D of the Act makes it clear that clauses (a) .....

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learly 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. 17. As already noticed herein above, sub-section (1) of Section 9D sets out the circumstances i .....

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tained 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, insofar as proving the truth of the contents thereof is concerned, is, therefore, completely lost, unless and until the case falls within the parameters of Section 9D(1). 18. The consequence would be that, in the absence of the circumstances specified in Section 9D(1), if the adjudicating authority relies on the statemen .....

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1) refers to the following circumstances : i) when the person who made the statement is dead, ii) when the person who made the statement cannot be found, iii) when the person who made the statement is incapable of giving evidence, iv) when the person who made the statement is kept out of the way by the adverse party, and v) when the presence of the person who made the statement cannot be obtained without unreasonable delay or expense. 21. Once discretion, to be judicially exercised is, thus conf .....

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attention to an unreported short order of the Supreme Court in UOI and another vs. GTC India and others in SLP ( C) No. 2183/1994 dated 03/01/1995 wherein it was held that the order passed by the adjudicating authority under Section 9D of the Act could be challenged in writ proceedings as well. Therefore, it is clear that the adjudicating authority cannot invoke Section 9D(1)(a) of the Act without passing a reasoned and speaking order in that regard, which is amenable to challenge by the assess .....

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e 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. 23. 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 .....

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as every chance of having been recorded under coercion or compulsion. It is a matter of common knowledge that, on many occasions, the DRI/DGCEI resorts to compulsion in order to extract confessional statements. It is obviously in order to neutralize this possibility that, before admitting such a statement in evidence, clause (b) of Section 9D(1) mandates that the evidence of the witness has to be recorded before the adjudicating authority, as, in such an atmosphere, there would be no occasion fo .....

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n 9D(1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry before the gazetted Central Excise officer, unless and until he can legitimately invoke clause (a) of Section 9D(1). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordanc .....

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precede re-examination. 27. 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. 28. Clearly, if this procedure, whic .....

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rth 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 adjudication, their statements cannot be considered as evidence. 30. That adjudicating authorities are bound by the general principles of evidence, stands affirmed in the judgement of the Supreme 13 of Court in C.C. V Bussa Overseas Properties Ltd, 2007(216) ELT 659 (SC), which upheld the decision of the Tribunal in Bussa Overseas Properti .....

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he said clause. That being so, it was not open to Respondent No.2 to rely on the said statements, without following the mandatory procedure contemplated by clause (b) of the said sub-section. The Orders-in-Original, dated 19/05/2016 and 01/06/2016, having been passed in blatant violation of the mandatory procedure prescribed by Section 9D of the Act, it has to be held that said Orders-in-Original stand vitiated thereby. 32. The said orders-in-Original, dated 19/05/2016 and 01/06/2016, passed by .....

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dure contemplated by Section 9D of the Act, and the law laid down by various judicial authorities in this regard, including the principles of natural justice, in the following manner: (i) In the event that the Revenue intends to rely on any of the statements, recorded under Section 14 of the Act and referred to in the Show Cause Notices issued to Ambika and Jay Ambey, it would be incumbent on the Revenue to apply to Respondent No 2 to summon the makers of the said statements, so that the Revenue .....

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pondent No 2, would have to be eschewed from evidence, and it would not be permissible for Respondent No 2 to rely on the said evidence while adjudicating the matter. Neither, needless to say, would be open to the Revenue to rely on the said statements to support the case sought to be made out in the Show Cause Notice. (iv) Once examination-in-chief, of the makers of the statements, on whom the Revenue seeks to rely in adjudication proceedings, takes place, and a copy thereof is made available t .....

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n opportunity to test the said evidence by cross-examining the makers of the said statements. If at all authority is required for this proposition, reference may be made to the decisions of the Hon'ble Supreme Court in Arya Abhushan Bhandar v U.O.I., 2002(143)ELT 25 (SC), Swadeshi Polytex v Vollector, 2000 (122) ELT 641 (SC). 34. In the case of M/s Fine Aromatics CWP 12616 of 2016 and M/s Shiva Mint Industries CWP 12618 of 2016, identical to those which had been issued to Ambika and Shiva Mi .....

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view of the above unequivocal expression of law as contained in a plethora of judicial authorities, the present appeal is allowed by setting aside the decision as communicated to the appellant by the impugned letter dated 03.06.2016, and the matter is remanded to the Principal Commissioner with a direction to adjudicate the Show Cause Notice strictly by complying with the mandate of Section 9D of the Act, in accordance with the directions contained in para 33 of the judgment of the High Court o .....

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Respondent No 2. (ii) A copy of the said record of examination-in-chief, by the Revenue, of the makers of any of the statements on which the Revenue chooses to rely, would have to be made available to the assessee, i.e. to Ambika and Jay Ambey in this case. (iii) Statements recorded during investigation, under Section 14 of the Act, whose makers are not examined in chief before the adjudicating authority, i.e. before Respondent No 2, would have to be eschewed from evidence, and it would not be p .....

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