TMI Blog2020 (1) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is required for establishing the truth and relevance of the statement recorded it should be allowed, and only after cross examination the statement can be admitted as an evidence in the proceedings - Once adjudicating authority/Commissioner (Appeals) find that cross examination was required, then before admitting any statement in evidence, they should allow/ extend opportunity for cross examination. There are no merits in the findings recorded by the adjudicating authority/ Commissioner (Appeal) that the opportunity was extended and since cross examination was not done on the appointed date, the bar of Section 9D has been successfully crossed. While making this observation, we are not observing that appellant could prolong the adjudication proceedings indefinitely by making the request for cross examination a then choosing not to appear on the day appointed for cross examination. In the present case after allowing the request for cross examination, adjudicating authority has proceeded to adjudicate the case without putting the appellant on notice just for the reason that hearing fixed for cross examination, did not happen on the appointed day - the matter needs to be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anji, under the provisions of Rule 26 of the Central Excise Rules, 1944. (5) This order is issued without prejudice to any other action that may be initiated under the provisions of the Central Excise Act, 1944 or under any other for the time being in force in Republic of India. 2.1 Specific information to effect that the appellant was involved in clandestine clearance was received by the officers in preventive branch of Ichalkaranji Division, Pune II Commissionerate. The information was duly supported by Delivery Challans cum Packing Slips. It was also stated that the grey fabric received against these documents have not been accounted for in the statutory documents but was processed and removed from the factory o appellant without payment of duty. 2.2 On the basis of information received investigations were initiated against the appellants and the officers, visited 13.01.2006. After scrutiny of the documents and recording the statement of various persons namely Shri Rajesh P Soni, Authorized Signatory, Shri Dadasaheb Dattu Khot, Dyeing Master, Shri Anil Maruti Gawali, working in the Grey Department, Shri Gopal Shamrao Gurav, wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.1 We have heard Shri Mayur Shroff, Advocate for the Appellant and Shri N N Prabhudesai, Superintendent, Authorized Representative for the revenue. 3.2 Arguing for the appellants, learned counsel submitted that- i. The entire demand is based on 583 Delivery Challans cum packing slips purportedly provided by an informer. During the course of visit of the officers on 13.01.2006 in the premises of appellant nothing was recovered and these could not be co-related with their statutory/ private records. ii. Thereafter the statements of various persons was recorded and show cause notice issued, which was challenged by them before the adjudicating authority. iii. They had specifically requested for cross examination of various persons whose statements have been recorded and made the basis for issuance of Show Cause Notice. Additional Commissioner had allowed the request of cross examination, and posted the matter for cross examination on next date of hearing. iv. However the matter was adjudicated by the Additional Commissioner, without actually undertaking the cross examination, and the demand of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or (b) when the person who made the statement is examined 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 provision of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court. 4.3 Hon ble Punjab and Haryana High Court has in case of Jindal Drugs [2016 (340) ELT 67 (P H)] held as follows:- 19.Clearly, therefore, the stage of relevance, in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de their letter dated 28.02.2008 received in this office on 03.03.2008. I have examined the contents of their letter and find that the reasons are not given for cross examination. I find that the case is made out on the basis of statements and other documents form part of evidence in this case. As such, grant of cross examination is not required in this case. From this para of order, it appears that adjudicating authority has in the first instance allowed the request f cross examination and fixed the date for cross examination on 22.4.2008. However since the cross examination did not happen on the appointed day he held the same to be irrelevant. 4.5 While dealing with the issue of cross examination, Commissioner (Appeals) has in para 4.3 of impugned order recorded as follows: 4.3 As regards the cross examination, it has been recorded by the lower authority that the appellant was given 4 opportunities and in fact the hearing date n 22.4.20 was fixed for cross examination. But neither the Advocate/ appellant nor the persons to be cross examined turned up on that day. The appellant falsely claims that opportunity for cross examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed for cross examination. Hon ble Apex Court has in case of Rasheed [Order dated 30.10.2018 in Criminal Appeal No 1321 of 2018 arising out of SLP (Criminal) 4652 of 2018)] 11. While deciding an Application under Section 231(2) of the Cr.P.C., a balance must be struck between the rights of the accused, and the prerogative of the prosecution to lead evidence. The following factors must be kept in consideration: possibility of undue influence on witness(es); possibility of threats to witness(es); possibility that non-deferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy; possibility of loss of memory of the witness(es) whose examination in-chief has been completed; occurrence of delay in the trial, and the non-availability of witnesses, if deferral is allowed, in view of Section 309(1) of the Cr.P.C In our considered view the principles of law as laid down by the Hon ble Apex Court as above will apply to the cross examination o be undertaken in departmental adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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