TMI Blog2018 (8) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... s settled position in law that the procedure laid down under Section 9D of the Act is required to be followed by the adjudicating authority. The adjudicating authority has not followed the procedure laid down under Section 9D of the Act and also violated the tenets of natural justice - the impugned order is liable to be set aside and the matter requires to be adjudicated afresh by following the procedure laid down under Section 9D ibid and by following the principles of natural justice. Appeal allowed by way of remand. - E/1014-1018/2010-EX[SM] - FINAL ORDER NO. 62550-62554/2018 - Dated:- 20-7-2018 - Mr. Devender Singh, Member (Technical) Present for the Appellant(s): Sh. Naveen Bindal, Advocate Present for the Respondent(s): Sh. Vijay Gupta, A.R. ORDER Per : Devender Singh The appellants are in appeal against the Order-in-Appeal No. 39-43/MA/GGN/2010 dated 22.01.2010 passed by the Commissioner of Central Excise (Appeals). 2. Brief facts of the case are that the appellant no.1 is engaged in the manufacture of invertors, UPS, EVR etc classifiable under Chapter 85 of the Central Excise Tariff. The appellant is registered with the department and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 3. I confiscate goods valued at ₹ 21,76,000/- seized from the resident premises of Sh. Karambeer under Rule 25 of the Central Excise (No.2) Rules, 2001, but give an option to the lawful owner of the same to redeem the same on payment of fine of Rs. Seven lacs and fifty thousand only. 4. I further confiscate components valued at ₹ 44,555/- which were seized at Plot No. 179, Phase VI, Udyog Vihar, Gurgoan under Rule 13 of the Cenvat Credit Rules, 2001 read with Rule 25 of the Central Excise (No.2) Rules, 2001, but give an option to its lawful owner to redeem the same on payment of fine of Rs. Twelve thousand only. 5. I confirm the demand of Central Excise duty of ₹ 11,36,639/- (Rs. 7,88,479/- + ₹ 3,48,160/-) on M/s Sukam Communication Systems Ltd, leviable on the goods seized at the Registered office-cum-depot and residential premises of Driver Sh. Karambeer under Section 11A(2) of the Central Excise Act, 1944. 6. I impose a penalty of Rs. Fifteen lacs only upon M/s Sukam Communication Systems Ltd, under Rule 25 of the Central Excise (No.2) Rules, 2001. 7. I also confiscate goods valued at ₹ 16,78,688/- involving Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is that the request of the appellants for cross examination of various persons whose statements were recorded, was not granted by the authority and Section 9D of the Central Excise Act has not been complied. It is also contended that the department has withdrawn the samples to ascertain whether the goods were final or not, but no test report was provided to the appellants and without knowing that the goods were final or not, their confiscation is not sustainable. Ld. Advocate also submitted that provisional release was granted after eight months and the value of the goods was deteriorated. He submitted that there is no provision under Rule 25 to confiscate the inputs as the said Rule is provided for finished goods only. (b) In respect of the goods lying at the head office, it is contended that the appellants were having closing stock of duty paid material of 2655 invertors, whereas 2034 pieces of invertors were found from the said office and the godown, which was also the residence of the appellant. It is also pleaded that cross examination was requested but not granted and therefore, Section 9D has not been complied. (c) As for the goods found in the residence of the dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 (197) ELT 572 (Tri. Del.) (iii) Gopal Industries Ltd. vs. CCE, Indore 2007 (193) ELT 478 (Tri. LB) (iv) Global Spin Weave Ltd vs. CCE, Ghaziabad 2006(193) ELT 478 (Tri. Del.) = 2008 (225) ELT 57 (All.) (v) CCE, Surat-I vs. Umiya Chem Industries 2005 ( 185) ELT 410 (Tri. Mum) 5. Heard the parties and perused the record. 6. After hearing both the sides, I find that the appellants have challenged the impugned order on the following grounds: (i) Cross examination of various witnesses was not granted by the adjudicating authority. (ii) Statements of witnesses were relied upon by the adjudicating authority without following the procedure laid down under Section 9D of the Act. (iii) The department had withdrawn the samples to ascertain whether the goods were final or not, but no test report was provided to them. (iv) There is no provision to confiscate the inputs under Rule 25 of the Central Excise Rules. (v) Statement of Sh. Sudhakar Dwevedi was not provided to them at the stage of adjudication and at the stage of Commissioner (Appeals). Admittedly, the statement dt. 30.01.2002 of Sh. Sudhakar Dwevedi has been provided to them at the stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement, recorded before a gazetted Central Excise officer during inquiry or investigation, would arise only after the statement is admitted in evidence in accordance with the procedure prescribed in clause (b) of Section 9D(1). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to in clause (a) of Section 9D(1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightaway rely on the statement recorded during investigation/inquiry before the gazetted Central Excise officer, unless and until he can legitimately invoke clause (a) of Section 9D(1). In all other cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) of Section 9D(1). For this, he has to summon the person who had made the statement, examine him as witness before him in the adjudicating proceeding, and arrive at an opinion that, having regard to the circumstances of the case, the statement should be admitted in the interests of justice. 26 . In fact, Section 138 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
