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TMI Blog2018 (8) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants despite the facts that those statements are hit by the provisions of Section 9D of the Central Excise Act, 1944? Since the issue involved in all these appeals is common therefore a common Order-in-Appeal was passed by the Appellate Authority in all the four appeals and due to which we are also passing a common order in all these appeals. 2. The ld. Counsel for the Appellant raised the preliminary issue that the cases against the Appellants are based upon no evidence since whatever statements of the buyers have been relied upon by both the authorities below, are hit by the provisions of Section 9D of Central Excise Act, 1944 and are therefore not admissible in evidence. He also very fairly submitted that the Appellant did not ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before a Court, as they apply in relation to a proceeding before a Court. 4. Section 9D (1) of the Act makes it clear that clauses (a) and (b) of the said sub-section sets out the circumstance 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. If these circumstances are absent, the statement which has been made during inquiry/investigation, before a Central Excise Officer of a gazetted rank, cannot be treated as relevant for the purpose of proving the truth of the facts contained therein. The evidentiary value of the statements, insofar as pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inquiry/investigation, by the Gazetted Central Excise Officer, has every chance of having been recorded under coercion or compulsion. It is a matter of common knowledge that, on many occasions, the DRI/DGCEI resorts to compulsion in order to extract confessional statements. It is obviously in order to neutralize this possibility that, before admitting such a statement in evidence, clause (b) of Section 9D(1) mandates that the evidence of the witness has to be recorded before the adjudicating authority, as, in such an atmosphere, there would be no occasion for any trepidation on the part of the witness concerned. 19. Clearly, therefore, the stage of relevance, in adjudication proceedings, of the statement, recorded before a Gazetted Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 proceedings as well. 7. There can, therefore, be no doubt about the legal position that the procedure prescribed in sub-section (1) of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts. 10. Once the ambit of Section 9D(1) is thus recognized and understood, one has to turn to the circumstances referred to in the said sub-section, which are contained in clauses (a) and (b) thereof. 11. Clause (a) of Section 9D(1) refers to the following circumstances : (i) when the person who made the statement is dead, (ii) when the person who made the statement cannot be found, (iii) when the person who made the statement is incapable of giving evidence, (iv) when the person who made the statement is kept out of the way by the adverse party, and (v) when the presence of the person who made the statement cannot be obtained without unreasonable delay or expense. 12. Once discretion, to be judicially exercised is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interests of justice. 14. There is no justification for jettisoning this procedure, statutorily prescribed by plenary parliamentary legislation for admitting, into evidence, a statement recorded before the Gazetted Central Excise officer, which does not suffer from the handicaps contemplated by clause (a) of Section 9D(1) of the Act. The use of the word "shall" in Section 9D(1), makes it clear that, the provisions contemplated in the sub-section are mandatory. Indeed, as they ..... X X X X Extracts X X X X X X X X Extracts X X X X
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