TMI Blog2017 (8) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... stine removal - matters remanded to the adjudicating authority for passing a fresh order after cross-examining the witnesses - appeal allowed by way of remand. - E/1199-1200, 1202/12, E/1943, 1992 to 1995/12 & E/85117 & 85118/13 - A/88682-88692/17/SMB - Dated:- 23-5-2017 - Shri Ramesh Nair, Member (Judicial) Shri S.P. Sheth, Advocate for Appellants Shri S.V. Nair, Asstt. Commr. (A.R) for respondent ORDER The fact of the case is that the appellants are engaged in the manufacture of TMT Bars. Investigation was carried from steel broker namely M/s. Balaji Steels, and it was found in the record maintained by M/s. Balaji Steels that certain consignments of TMT bars were cleared and sold through the said steel broker M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the appellants have rejected the statement of broker and transporters. In such case, it was necessary for the Commissioner to conduct the cross-examination of those witnesses which is mandatory under Section 9D of the Central Excise Act, 1944. Since the adjudicating authority has not carried out the procedure provided under Section 9D of the Central Excise Act, the statements should not have been relied upon for concluding clandestine removal against the appellants M/s. Bhagwati Steel Cast Ltd., and Shree Vaishnav Alloys Pvt. Ltd. He submits that in one of the case of Shri Vaishnav Alloys Pvt. Ltd. the cross-examination was requested, which was denied. However, even if the cross-examination is not requested it is incumbent on the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon and used against the appellant for establishing the charge of clandestine removal. In this regard relevant Section 9D of the Central Excise Act reads as under: Section 9D. Relevancy of statements under certain circumstances. - (1) A statement made and signed by a person before any Central Excise Officer of a Gazette 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 of the way by the adverse party, or whose presence cannot be obtained without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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