TMI Blog2022 (5) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... e can, therefore, be no doubt about the legal position that the procedure prescribed in sub-section (1) of Section 9D is required to be scrupulously followed, as much in adjudication proceedings as in criminal proceedings relating to prosecution. In the present case, the witness has time and again reiterated that the appellant has never been involved in the alleged clandestine removal. He has tried to explain the shortage as was noticed at the time of physical verification of the stock - he has specifically mentioned that production records are maintained by production units, hence, shall be available there. The separate invoice for captive consumed sponge iron and MS ingots has specifically been denied to be generated. Weighment slips were used to be made manually with no record thereof has been mentioned specifically to answer absence of weightment slips. To test the veracity of these submissions in the light of simultaneous acknowledgement to deposit the differential duty demanded, it is opined that interest of justice shall best be served when this witness is cross examined and his testimony is relied upon after following the procedure of aforementioned section 9D of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal no. 3581 dated 25.2.2019. The appeal thereof has been rejected by the order under challenge. 3. I have heard Mr. Jitin Singhal, learned Counsel for the appellant and Mr. Mahesh Bharadwaj, Authorised Representative for the Respondent. 4. It is submitted on behalf of the appellant that entire case has been booked by the Department solely relying upon the statement of Shri Narendra Mishra, General Manager of the appellant company as was recorded on 1.9.2013. It is submitted that despite Mr. Narendra Mishra had denied all the allegations of the show cause notice still his deposition as been taken as admission by the adjudicating authority and thus has been made the basis for confirmation of the proposed demand. Learned Counsel submitted that he requested for cross examination of Mr. Narendra Mishra along with other witnesses from the Department i.e. the Panchas (the witness to panchnama) and the experts as well but his request was declined holding that the proceedings are not in the nature of criminal trial and majority of evidences placed by the Department are documentary. The said findings have been reaffirmed by the Commissioner (A). 5. The learned Counsel has impressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The relevant provision for the purpose is Section 9D of Central Excise Act. Foremost glance to the said section is important which is reproduced as follows: Section 9D: Relevancy of statements under certain circumstances- (1) A statement made and signed by a person before any Central Excise Officer of a Gazette rank during the course of any inquiry or 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. Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he truth of the facts contained in the said statement, it has to be held that the adjudicating authority has relied on irrelevant material. Such reliance would, therefore, be vitiated in law and on facts. 14. 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. 15. 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. 16. Once discretion, to be judicially exercised is, thus conferred, by Section 9D, on the adjudicating authority, it is self-evident inference that the decision flowing from the exercise of such discretion, i.e. the order which would be passed, by the adjudicating authority under Section 9D, if he choose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 20. Clearly, therefore, the stage of relevance, in adjudication proceedings, of the statement, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings are quasi criminal as they results in imposition of duty with penalty and lead to prosecution in some cases - Hence, Section 9D ibid has to be construed strictly, as mandatory and not merely directory - Without complying with requirement of Section 9D ibid, statement recorded during search and seizure operation by Investigation Officers is not relevant evidence. 27. Hon ble Apex Court in the case of Commissioner of Central Excise vs. Kalvert Foods India Pvt. Ltd. cited as 2011 (270) ELT 643 (SC) has held as follows: We are of the considered opinion that it is established from the record that the aforesaid statements were given by the concerned persons out of their own volition and there is no allegation of threat, force, coercion, duress or pressure being utilized by the officers to extract the statements which corroborated each other. Besides the Managing director of the Company of his own volition deposition the amount of Rs. 11 lakhs towards excise duty and therefore in the facts and circumstances of the present case, the aforesaid statement of the Counsel for the Respondents cannot be accepted. This fact clearly proves the conclusion that the statements of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof has been mentioned specifically to answer absence of weightment slips. 32. To test the veracity of these submissions in the light of simultaneous acknowledgement to deposit the differential duty demanded, I opine that interest of justice shall best be served when this witness is cross examined and his testimony is relied upon after following the procedure of aforementioned section 9D of the Central Excise Act. In addition it is apparent that granting such a permission will in no circumstance be prejudicial to the interest of the Department, except in the case of the cross examination of the Departmental witnesses. Otherwise, it is observed from the order under challenge that much reliance on the deposition of Departmental witnesses has not been placed it is the statement of the appellant and the statement of the witness of the panchnama, which has been relied upon by the Adjudicating authorities while confirming the impugned demand against the appellant. 33. In view of the above discussion, I do not find any such fact in the present case which may differ the findings of the Hon ble High Court as well as the Hon ble Supreme Court in the decisions cited above. Conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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