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M/s Jain Sons, Sushil Jain, M/s. Calcutta Ahmadabad Carriers Pvt. Ltd. And M/s. Anjan Pattanayak Versus Commissioner of Central Excise, Delhi-I

2017 (11) TMI 757 - CESTAT NEW DELHI

SSI Exemption - case of Department is that both the factories were wrongly availing SSI exemption by clearing goods clandestinely without payment of duty - cross-examination of witnesses - Held 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 C .....

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r. (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.13-14/2012 dated 8.11.2012. The Department carried out search operations at the following three premises on 11.10.2009:- 1. M/s. Jain Sons - proprietary concern of Shri Mukesh Jain 2. M/s. New Jain Sales Corpn. - a proprietary con .....

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ectronic devices was printed out with the help of a computer expert in the presence of Shri Sushil Jain and Shri Mukesh Jain. The print outs were shown to the respective proprietors of the units and their statements were recorded on different dates, in which they admitted that the data pertained to clearances of goods from the two units made clandestinely. Investigations were extended to M/s. Jai Guru Trading Company, Calcutta to whom a significant part of the goods were shown to have been clear .....

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ed. 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 state .....

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opies 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 of M/s. Jai Guru Trading Company had retracted their statements subsequently. Further, the appellants are seriously cha .....

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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 sta .....

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, 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 o .....

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in 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 .....

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her than a proceeding before a Court, as they apply in relation to a proceeding before a Court. 5. A plain reading 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 .....

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tion 9D is required to be scrupulously followed, as much in adjudication proceedings as in criminal proceedings relating to prosecution. 8. As already noticed herein above, sub-section (1) of Section 9D sets out the circumstances in which a statement, made and signed before a Gazetted Central Excise Officer, shall be relevant for the purpose of proving the truth of the facts contained therein. If these circumstances are absent, the statement, which has been made during inquiry/investigation, bef .....

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