TMI Blog2017 (7) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... /2007 - A/30923-30926/2017 - Dated:- 23-6-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Madhu Mohan Damodhar, Member (Technical) Ms. Asmita a Nayak Sh. Prashant Shukla, Advocates for the Appellant Sh. T.J.S. Prabhakar, (AR) for the Respondent ORDER [Order Per: M. V. Ravindran] 1. All these appeals are directed against the Order-in- Original C. Ex Nos.11/2006 dated 29.12.2006. 2. The brief relevant facts that arise for consideration are appellant M/s SM Industries were manufacturing sponge iron for which they procure iron ore and coal which are required in equal quantity as the production process of the SM Industries is coal based. The department officials on a visit to the appellants factory and offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials from the main appellant on cash basis and without raising any invoices. He would submit that the clandestine manufacturing and clearing of the goods have been established by the adjudicating authority in the impugned order. 5. On careful consideration of the submissions made by both sides and perusal of records, we find that the entire issue is regarding the appreciation of the evidences in respect of the allegation of clandestine removal of sponge iron by the main appellant and imposing of penalties on other appellants for aiding/assisting such an activity. We find from the records that the adjudicating authority as in the impugned order at paragraph no.70 as regards the request for cross examinations has held as under: 70 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Section 9D of the Central Excise Act, 1944 in detail and in paragraph 16 to 25 held how the provisions will apply in respect of the adjudication procedure in the Central Excise matters. We respectfully reproduce the same. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the witness concerned. 19. Clearly, therefore, the stage of relevance, in adjudication proceedings, of the statement, recorded before a Gazetted Central Excise Officer during inquiry or investigation, would arise only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of Section 9D(1). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arded 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 (260) E.L.T. 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. 24. That adjudicating authorities are bound by the general principles of evidence, stands affirmed in the judgment of the Supreme Court in C.C. v. Bussa Overseas Properties Ltd., 2007 (216) E.L.T. 659 (S.C.) , which uphel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue 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 to the assessee, it would be open to the assessee to seek permission to cross-examine the persons who have made the said statements, should it choose to do so. In case any such request is made by the assessee, it would be incumbent on the adjudicating authority, i.e., on Respondent No. 2 to allow the said request, as it is trite and well-settled position in law that statements recorded behind the back of an assessee cannot be relied upon, in adjudication procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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