TMI Blog2017 (11) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... esses was disallowed. 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 extended through an effective hearing to all connected parties - appeal allowed by way of remand. - Excise Appeal No.55717–55719 & 55774 of 2013 (DB) - A/56977-56980/2017-EX[DB] - Dated:- 6-10-2017 - Mr. (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Dr. Prabhat Kumar, Shri B B Sharma, Advocate for the Appellants Shri R K Mishra, AR for the Respondent ORDER Per: V. Padmanabhan These appeals have been filed against the order in original No.13-14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res from M/s. Jain Sons along with penalty of equal amount. The impugned order confirmed the demand of Central Excise duty and imposed penalties on the appellant and other persons. Aggrieved by the impugned order, present appeals have been filed. 3. With the above background we heard Dr. Prabhat Kumar, Shri B B Sharma, Advocates for the Appellants and Shri R K Mishra, AR for the Respondent. 4. The appellants have challenged the impugned order on many grounds. But the learned Counsels, at the outset submitted that the impugned order has been passed without following proper procedure resulting in violations of principles of natural justice. He submitted that the appellants had requested for cross examination of many persons whose statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Mukesh Jain. Accordingly, he submitted that impugned order be upheld. 7. After hearing both sides and on perusal of record, we find that it is necessary to first deal with the preliminary objections raised by the learned Counsels on behalf of the appellants. From the impugned order, it is seen that the learned Commissioner had initially permitted the cross examination of the witness sought by the appellant. It is also on record that the two panch witnesses were also cross examined and their statements recorded before the adjudicated authority. However, after taking over of a new officer as Commissioner, the cross examination of the rest of the witnesses was disallowed. The adjudicating authority in the impugned order in para 23 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose 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 an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined as a witness 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 interests of justice. (2) The provision of sub-section (1) shall, so far as ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these circumstances are absent, the statement, which has been made during inquiry/investigation, before a Gazetted Central Excise Officer, cannot be treated as relevant for the purpose of proving the facts contained therein. In other words, in the absence of the circumstances specified in Section 9D(1), the truth of the facts contained in any statement, recorded before a Gazetted Central Excise Officer, has to be proved by evidence other than the statement itself. The evidentiary value of the statement, insofar as proving the truth of the contents thereof is concerned, is, therefore, completely lost, unless and until the case falls within the parameters of Section 9D(1). 9. The consequence would be that, in the absence of the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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