TMI Blog2018 (12) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of remand. - Appeal No. C/61162-61163/2018 - FINAL ORDER NO.63541-63542/2018 - Dated:- 5-12-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) Present for the Appellant: Shri Saurabh Kapoor, Advocate Present for the Respondent: Shri M.S. Dhindsa, AR ORDER PER: ASHOK JINDAL The impugned orders have been challenged by the appellant on the ground that during the course of adjudication, the appellant sought cross examination of the chemical examiner as well as chartered engineer, which has not been granted to the appellant, the same is in violation of principles of justice. 2. Heard the parties. 3. Considering the fact that the provisions of Section 138 (b) of the Customs Act, 1962 are pari materia to the provisions of Section 9D of the Central Excise Act, 1944 and in the case of Alliance Alloys Pvt Ltd vs. CCE, Delhi-2016 (338) ELT Tri.-Chan.). This Tribunal has examined the issue whether in terms of Section 9D of the Central Excise Act,1944, the adjudicating authority is required to first examine the witness in chief for cross examination or not. This Tribunal in para 16 has observed as under:- 16. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply in relation to any proceedings under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court. 8. The main contention of the appellant is that the deponents whose statements have been relied upon by the adjudicating authority were not put to examination-in-chief before providing an opportunity of cross-examination. A plain reading of sub-section (1) of Section 9D 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 gazette 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. Therefore, there is no doubt about the legal position that the procedure prescribed in subsection (1) of Section 9D is required to be scrupulously followed, as much as in adjudication proceedings as in criminal proceedings relating to prosecution. Therefore, subsection (1) of Section 9D set out the circumstances in which a statement, made and signed by a person before the Central Excise Officer shall be relevant, for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be admitted in evidence in the interest of justice. The same view has been taken by Hon‟ble Allahabad High Court in the case of Parmarth Iron Pvt. Ltd. (supra) wherein the High Court has observed as under :- We, therefore, have no hesitation in holding, that there is no 16. requirement in the Act or Rules, nor do the principles of natural justice and fair play require that the witnesses whose statements were recorded and relied upon to issue the show cause notice, are liable to be examined at that stage. If the Revenue choose not to examine any witnesses in adjudication, their statements cannot be considered as evidence. However, if the Revenue choose to rely on the statements, then in that event, the persons whose statements are relied upon have to be made available for cross-examination for the evidence or statement to be considered. We further find that in the case of 10. Smt. Sharadamma (supra), Hon ble Karnataka High Court has observed as under :- It is not the duty of the Court to direct the parties or compel 9. the parties as to in what manner they should conduct their case before the Court or also what quality of evidence they should place before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at if witness cannot be examined for any of these five reasons, the statement previously recorded would be relevant. The adjudicating authority was therefore bound to follow the binding precedent and in absence of any specified circumstance to consider the statement relevant without examining the witnesses, erred in rejecting the request of the appellant to examine the witnesses and to offer them for cross-examination. The appellant has also relied on the judgment of Hon ble Apex 8. Court in Sukhwant Singh v. State of Punjab, (1995) 3 SCC 367 to give emphasis on his submission that examination of witness is mandatory unless specified exceptional circumstances mentioned in clause (a) of Section 138B(1) exist. The Hon ble Apex Court was pleased to hold that - It will be 8. pertinent at this stage to refer to Section 138 of the Evidence Act which provides : Order 138. of examinations. - Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-examined by prosecution. There is, in our opinion, no meaning in tendering a witness for cross-examination only. Tendering of a witness for cross-examination, as a matter of fact, amounts to giving up of the witness by prosecution as it does not choose to examine him in chief. However, the practice of tendering witness for cross-examination in session trials had been frequently resorted to since the enactment of the code of Criminal Procedure, 1898. In view of the above anaylsis, it is clear that during 14. adjudication, the adjudicating authority is required to first examine the witness in chief and also to form an opinion that having regard to the facts and circumstances of the case, the statements of the witness are admissible in evidence. Thereafter, the witness is offered to be cross examined. In the absence of examination in chief, allowing the cross-examination, is a futile exercise. We further find that the appellant have challenged the impugned order on the ground that the evidence in the form of statements gathered have no link of the appellant to the activities took at Sandeep Poultry Farm which is required to be examined on the basis of records available durin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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