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2019 (8) TMI 142

..... of documents - violation of Section 9D of Central Excise Act, 1944/138 of Customs Act, 1962 - HELD THAT:- Section 9D of CEA deals expressly with the circumstances in which a statement recorded before a Gazette Officers can be treated as relevant for the purposes of proving the truth of contents thereof. What is categorically required by the Section is that the person whose statement was earlier recorded before Gazette Officer has to be examined as witness before the adjudicating authority who thereafter has to arrive at an opinion that having regard to the circumstances of the case the statement should be admitted in evidence in the interest of justice - It is only after both these steps are complied with that the statement would be eligible for being treated as relevant in the proceedings so that the assessee can if it so chooses exercise the option to test the evidence by way of cross examination. The said right is otherwise permitted under Section 138 of the Indian Evidence Act, 1932. Whether the statements of the persons as are prayed to be cross examined qualify to be called as statement simplicitor? - HELD THAT:- The statements even if retracted can form the basis of convicti .....

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..... have included the amounts paid to the parent Company terming them as Royalty in connection with import of goods treated by M/s. SCIPL in the assessable value. On the basis of said information, the search of the appellants premises seizing goods/documents/laptops, etc. was conducted on 10.12.2015. Seized goods, however, were given to the Directors of SCIPL namely Shri Vineet Saluja and Shri Pradeep Sharma for safe custody. The statement of Shri Vineet Saluja was recorded on 10.12.2015, 20.07.2016, 19.06.2016 and 15.11.2016. The statement of Shri Pradeep Sharma was recorded on 10.12.2015 and 16.05.2016 accepting that M/s. SCIPL have committed the above mentioned acts. From the entire investigation, Department observed that M/s. SCIPL has colluded with their overseas suppliers and has fabricated documents and created parallel set of documents i.e. invoices to be submitted to Customs with an intention of evading payment of applicable duty and invoices for the purposes of actual payments. While they have made payments on the basis of invoices showing actual transactional value, they have caused duplicate invoices showing lesser value to the Customs Authorities for the purpose of assessm .....

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..... ustoms Act, 1962 statutorily mandates the same. Learned Counsel has relied upon the Single Member Bench decision of this Tribunal bearing Final Order No. 53409-53411/2016 dated 06.09.2016 wherein it has been held that the statements recorded during investigation are required to be examined in Chief and the right of cross examination cannot be denied merely because the deponents are either co-noticees/employees of the assessee. Learned Counsel has also relied upon the following case laws: Elora Tobacco Co. Ltd. Vs. C.C.E., Indore reported in 2017 (347) ELT 614 (Tri.-Del.) Agarwal Round Rolling Mills Ltd. Vs. C.C.E. & S.T., Raipur reported in 2015 (317) ELT 145 (Tri.-Del.) J&K Cigarettes Ltd. Vs. Collector of Central Excise reported in 2009 (242) ELT 189 (Del.) Arya Abhushan Bhandar Vs. Union of India reported in 2002 (143) ELT 25 (S.C.) 4. While rebutting these arguments it is submitted on behalf of the Department that the principles of natural justice do not require that in each and every matter the person who has given information should be examined in presence of the appellant/assessee or should be allowed to be cross examined by the person concerned in support of the sta .....

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..... mined 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 provisions of sub- section (1) shall, so far as may be, 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. 5.2 This Section deals expressly with the circumstances in which a statement recorded before a Gazette Officers can be treated as relevant for the purposes of proving the truth of contents thereof. What is categorically required by the Section is that the person whose statement was earlier recorded before Gazette Officer has to be examined as witness before the adjudicating authority who thereafter has to arrive at an opinion that having regard to the circumstances of the case the statement should be admitted in evidence in the interest of justice. It is only after both these steps are complied with that the statement would be eligible for being treated as relevant in the proceedings so that the assessee can if it so chooses exercise the option to test the evidence by w .....

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..... ntary and was obtained by threat or duress the burden lies upon the accused. We observe that there is nothing on record till date to satisfy the adjudicating authorities that the statement/confessions of the Directors of the Company were however made under threat or duress. Therefore, we are of the opinion that statements even if retracted can form the basis of conviction without examination of the persons making confessions in the manner as mentioned under Section 9D of Excise Act/138 of the Indian Evidence Act. 9. It is also an apparent and admitted fact that Shri Vineet Saluja and Shri Pradeep Sharma are not merely the Directors/ agents of appellant Company but are the co-noticees as well. Hon ble Apex Court in the case of Haricharan Kurmi and Jogia Vs. State of Bihar reported in 1964 Constitutional Bench of Supreme Court 1184 has considered the controversy as to: When the confession of co-accused/ co-noticee can be used as evidence under Section 3 of the Evidence Act. 10. The Hon ble Court held that though the confession of co-accused cannot be treated as substantive evidence but if the Court believed other evidence and felt the necessity of seeking an assurance in respect of i .....

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..... did not agree to be examined he cannot be compelled to come as a witness for cross-examination. The Hon ble High Court of Calcutta in the case of Tapan Kumar Biswas Vs. Union of India and others reported in 1996 (63) E.C.R. 546 has held that where the proceedee would be entitled to intercept the relevant documents they would not be entitled to cross examine any witness. 13. From the above discussion it becomes clear that the confessional statements are out of the ambit of Section 9D as relied upon by the appellant and as has been considered in the various case laws relied upon by the appellant. The co-noticee, if his statement amounts to confession, cannot be compelled to be cross examined and there would be no violation of principles of natural justice in that case. Though ample opportunity with the proceede/assessee has to be granted to put forth his defence, however, the assessee cannot be compelled to self-incriminate himself. In view of the said observations we are of the opinion that permission for cross examining Shri Vineet Saluja and Shri Pradeep Sharma has rightly been denied. As far as Ms. N. Rashmi and Shri Amit Mallik are concerned, since their statements as were give .....

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