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TMI Blog2017 (11) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... 009:- 1. M/s. Jain Sons - proprietary concern of Shri Mukesh Jain 2. M/s. New Jain Sales Corpn. - a proprietary concern of Shri Sushil Jain. 3. M/s. New Jain Sales Corpn.(shop) 2. The Department investigated the allegation that both the above factories were wrongly availing SSI exemption by clearing goods clandestinely without payment of duty. In addition to incriminating documents, from the factory premises of M/s. Jain Sons, palmtop, computer, laptop computer and CPU with CD drives were recovered. Likewise from M/s. New Jain Sales Corpn. also, pen drives were recovered. The data contained in the various electronic devices was printed out with the help of a computer expert in the presence of Shri Sushil Jain and Shri Mukesh Jain. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons sought by the appellant. Accordingly, the cross examination of panch witness took place during personal hearings before the Commissioner. However, before the cross examination of other witnesses could be completed, the Commissioner was transferred and the next Commissioner, disallowed the cross examination of any more witnesses. The appellant had also sought copies of the several documents seized from them but without furnishing copies of the remaining documents, the adjudicating authority fixed the hearing again on 23.7.2012. and finally passed the order without giving them an opportunity to submit a final reply. 5. The learned counsel further submitted that Shri Sushil Jain, Shri Mukesh Jain as well as Shri Anjan Patnayak, Mangaer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstant case, I find that averments made by the party with regard to applicability of section 9 D of the Central Excise Act, 1944 are not germane to the issues involved inasmuch as the section 9D relates to prosecution of offenders in the court of law only (that too in judicial proceedings). It may be worthwhile to mention here that the proceedings of adjudication and proceedings of prosecution can not be seen on the same pedestal. Thus following of strict provisions as envisaged in terms of section 9D are not warranted in the case of quasi judicial proceedings." 8. The applicability of the provisions of section 9D of the Central Excise Act, 1944 in adjudication proceedings before departmental authority was examined by the Hon'ble Punjab a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of sub-section (1) of Section 9D of the Act makes it clear that clauses (a) and (b) of the said sub-section set out the circumstances in which a statement, made and signed by a person before the Central Excise Officer of a gazetted rank, during the course of inquiry or proceeding under the Act, shall be relevant, for the purpose of proving the truth of the facts contained therein. 6. Section 9D of the Act came in from detailed consideration and examination, by the Delhi High Court, in J.&K. Cigarettes Ltd. v. CCE, 2009 (242) E.L.T. 189 (Del.) = 2011 (22) S.T.R. 225 (Del.). Para 12 of the said decision clearly holds that by virtue of sub-section (2) of Section 9D, the provisions of sub-section (1) thereof would extend to adjudication pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be held that the adjudicating authority has relied on irrelevant material. Such reliance would, therefore, be vitiated in law and on facts. 9. Similar views have also been expressed by the Hon'ble Delhi High Court in the following cases: 1. Flevel International Vs. CCE [2016 (332) ELT 416 (Del)] 2. Him Logistics Pvt. Ltd. Vs. PCC [2016 (336) ELT 15 (Del)] 10. This Tribunal has also followed these decisions in several cases consistently. Keeping in view the observations of the Hon'ble High Courts, we are of the view that the impugned order needs to be set aside and matter remanded to the adjudicating authority. For satisfying the requirements prescribed 9D ibid opportunity for examination and cross examination of witnesses may be e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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