TMI Blog2017 (6) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... rd party records and statements. The adjudicating authority should have followed the provisions of Section 9D before placing reliance upon such statements and passing of the adjudication order. Matter remanded to adjudicating authority, who shall grant cross examination of the persons as requested by M/s Nashik Strips and shall decide the case De Novo - Appeal allowed by way of remand. - E/1131 to 1134/10 & 1189/10-MUM - A/87532-87536/17/SMB - Dated:- 26-5-2017 - Mr. Ramesh Nair, Member (Judicial) Shri Ashok Kumar Singh, Advocate for the Appellants Shri Ashutosh Nath Asstt. Commissioner (A.R.) for the Respondent ORDER These appeals have been filed by M/s Nashik Strips Pvt. Ltd., Shri Salasar Ispat Pvt. Ltd, Shri Pawan Kumar Agarwal, Shri Vijay Kumar Jindal and Shri Harishkumar against order dt. 31.03.2010 passed by the Commissioner (Appeals), Central Excise Customs, Nasik wherein demand of ₹ 25,25,388/- was confirmed against M/s Nashik Strips and equivalent amount of penalty was imposed, Also penalty of ₹ 1,00,000/- was imposed upon M/s Salasar Ispat, penalty of ₹ 2,00,000/- was imposed upon Shri Pawan Kumar and penalty of ₹ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 (305) E.L.T. 278 (Del.), Bhor Rubber Factory Vs. CCE, Pune- II 2006 (198) E.L.T. 549 (Tri. Mumbai), Jay Bhawani Metal Company Vs. ST, SURAT-I, 2014 (309) E.L.T. 698 (Tri. Ahmd.), Ghodavat Pan Masala Products Ltd. Vs. CCE, PUNE, 2004 (175) ELT 182 (TRI). I.Gurusamy vs, CCE, Madurai 2002 (145) E.L.T. 616 (Tri. Chennai), T.G.L. Poshak Corporation Vs. CCE, Hyderabad 2002 (140) E.L.T. 187 (Tri. - Chennai), Sakeen Alloys Pvt. Ltd. vs. CCE, Ahmedabad, 2013 (296) ELT 392 (TRI- AHD), Centurian Laboratories Vs. CCE, Vadodara 2013 (293) ELT 689 (TRI). He submits that the principles of natural justice was not followed as inspite of retraction of statements, the cross examinations were not permitted, He relies upon the judgment of Kellogg India Pvt. LTD. Vs. UOI 2006 (193) E.L.T. 385 (Bom.), J K Igarettes LTD. Vs. CCE, 2009 (242) E.L.T. 189 (Del.), Basudev GARG Versus CCU 2013 (294) E.L.T. 353 (Del.), Galaxy Indo Fab. Ltd. Vs. CCE, Lucknow 2010 (258) E.L.T. 254 (Tri. Del.). 4. On the other hand, Shri. Ashutosh Nath, Ld. Asstt. Commissioner appearing for the revenue submits that the incriminating documents seized from M/s Shri Salasar Ispat its associated places and Shri Gautam shows c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the appellants have placed reliance on the decision of the Supreme Court in the case of Swadeshi Polytex Ltd. v. Collector reported in 2000 (122) E.L.T. 641 (S.C.) as well as on Lakshman Exports Limited v. Collector of Central Excise reported in 2002 (143) E.L.T. 21 (S.C.) for the proposition that whenever any statement is relied upon by the Revenue, an opportunity of cross-examining the maker of the statement should be given to the Noticee. Learned counsel for the appellants also placed reliance upon a decision of a Division Bench of this court in the case of J K Cigarettes Ltd. v. Collector of Central Excise reported in 2011 (22) S.T.R. 225 (Del.) = 2009 (242) E.L.T. 189 (Del.). 10. Insofar as the general propositions are concerned, there can be no denying that when any statement is used against the assessee, an opportunity of cross-examining the persons who made those statements ought to be given to the assessee. This is clear from the observations contained in Swadeshi Polytex Ltd. (supra) and Laxman Exports Limited (supra). Apart from this, the decision of this court in J K Cigarettes Ltd. (supra) clinches the issue in favour of the appellant. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness 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 interest of justice. (2) The provisions of sub-section (1) 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 in relation to a proceeding before a court. It is apparent that both the provisions are identical. 13. This court while upholding the validity of Section 9D of the Central Excise Act, 1944 interpreted its provisions as under :- 12. Bare reading of the above section manifests that under certain circumstances, as stipulated therein, statement made and signed by those persons before any Central Excise Officer of a gazette rank during the course of inquiry or proceedings 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 situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to make his submissions in this behalf. It goes without saying that the authority would record reasons, based upon the said material, for such a decision effectively. Therefore, the elements of giving opportunity and recording of reasons are inherent in the exercise of powers. The aggrieved party is not remediless. This order/opinion formed by the quasi judicial authority is subject to judicial review by the appellate authority. The aggrieved party can always challenge that in a particular case invocation of such a provision was not warranted. 15. The observations and conclusions arrived at by the Division Bench in the case of J K Cigarettes Ltd. (supra) would apply with equal vigour to the provisions of Section 138B of the Customs Act, 1962. We find that this aspect of the matter has not been considered by any of the authorities below. In fact, Section 138B of the Customs Act, 1962 has not been examined at all. The aforesaid judgment of the Hon'ble Court was based upon the case of M/s J.K. Cigarette Ltd. vs. Union of India 2009 (242) ELT 189 DEL. I find that the denial of cross examination of the persons requested by the Appellant M/s Nashik Strips is not corre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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