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TMI Blog2017 (8) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... nducted at the premises of the appellant on 19.10.2012 and during the search at the office premises, residential premises and the factory of the appellant, certain documents were resumed and seized. It was alleged in the show cause notice that during the course of investigation, 7 Kucha Slips and one paper was recovered which shows the sale value including cash sales. On the basis of those Kucha Slips and the said paper, it was alleged that appellant is engaged in the activity of clandestine removal of goods and statement of the appellant was also recorded. The said statements were also made part of the show cause notice to allege the clandestine removal of the goods. The matter was adjudicated and it was held that the appellant has exceede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his contention he relied on the decision of this tribunal in the case of M/s Sadashiv Steel Mills & Others Vs. CCE, Chandigarh (Final order No.61166-61171/2016 dated 08.08.2016). 4. On the other hand, ld. AR opposed the contention of the ld. Counsel and submits that during the course of investigation only the total sales shown by the appellant were recovered, 7 Kucha Slips were also recovered. The statements of the appellant was also recorded although the same was retracted but two statements were retracted after a lapse of one year and thereafter the affidavit was also withdrawn. He also submits that as the appellant did not come forward with the investigation with regard to suppliers and buyers, therefore no investigation could be condu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 :- "9D. 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 of the way by the adverse party, or whose presence cannot be obtained wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 gazetted Central Excise Officer, cannot be treated as relevant for the purpose of proving the fact contained therein as observed by Hon'ble Delhi High Court in the case of J.K. Cigarettes (supra) wherein Hon'ble High Court has observed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 9D(1)(i) the person who made the statement has to first be examined as a witness in the case before 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 interest of justice. The same view has been taken by Hon'ble Allahabad High Court in the case of Parmarth Iron Pvt. Ltd. (supra) wherein the High Court has observed as under :- 16. We, therefore, have no hesitation in holding, that there is no requirement in the Act or Rules, nor do the principles of natural justice and fair play require that the witnesses whose statements were recorded and relied upon to issue the show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that the law is well-settled that, in cases of clandestine manufacture and clearances, certain fundamental criteria have to be established by Revenue which mainly are the following : (i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions; (ii) Evidence in support thereof should be of : (a) raw materials, in excess of that contained as per the statutory records; (b) instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty; (c) discovery of such finished goods outside the factory; (d) instances of sale of such goods to identified parties; (e) receipt of sale proceeds, whether b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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