TaxTMI 
TaxTMI 
2016 (4) TMI 622
X X X X Extracts X X X X
X X X X Extracts X X X X
....pan masala by clandestinely installing and operating FFS machines from an undeclared and unregistered premises of Sandeep Poultry Farm, Khasra No.63/3, Village Khera Khurd, New Delhi-110082 As on manufacture of gutkha and pan masala the duty is payable under the compounded levy scheme on the basis of number of pouch packing machine installed in the factory and MRP of the poches manufactured by such pouch packing machines. The duty on pan masala having MRP upto Rs. 1 per pouch has been fixed at Rs. 12.50 lakhs per packing machine per month and pan masala having MRP of Rs. 1 per pouch has been fixed at the rate of Rs. 9.25 per lakhs per packing machine per month vide Notification No.42/2008-CE dated 1.7.2008. The packing machines manufactured 'Kanchan/Kanchann' brand gutka and 'wiz' brand pan masala being at undeclared and unregistered premises on which duty is payable under the compounded levy scheme. An investigation was conducted on 31.10.2008/1.11.2008 and it was found that at the premises of Sandeep Poultry Farm five pouch packing machines were installed out of which four machines manufacturing 'Kanchan/Kanchann' brand gutka bearing the marking manufactur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....statements recorded during the course of investigation, inasmuch as the Revenue did not choose to examine the deponents of any of the statements referred to in the show cause notice, the said statements had to be taken as given up and could not, in any event, be regarded as evidence in the adjudication proceedings, so that the commissioner could not have relied on the said statements, in view of section 9D of the Act and the law has been developed thereon. It is further submitted that the said statements are eschewed from consideration, there is no credible evidence on the basis whereof M/s.Kuber, or any of other appellants in the present appeals, could be linked to the activities allegedly carried out at Sandeep Poultry Farm. It is further submitted that the statements of the persons recorded under section 14 of the Act, who are not examined by the revenue in adjudication, are deemed to be given up and do not constitute relevant evidence. To support this contention, he relied upon the decision in the case of J.K.Cigarettes-2009 (242) ELT 189 (Del.) and GTC Ltd. He also submitted that as per section 138 of the Evidence Act. 1872 dearly set out the sequence of evidence, in which evi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that the learned counsel has heavily relied upon in the case of J.K.Cigarettes. In that case, Hon'ble High Court as opined that the provisions of section 9D (2) are not unconstitutional and ultra vires in so far as vires of the provisions are concerned, they find no merit and dismissed the same. Therefore, he submitted that the impugned order is to be upheld but the dropping the demand for the period August, 2008 to November, 2008 is required to be modified as it is evident on record that during the said period such machines were installed in the factory premises of the appellants. 7. We have gone through the facts of the case wherein the certain machines were installed at Sandeep Poultry Farm Khasra No.63/3, Village Khera Khurd, New Delhi-110082 found wherein 'Kanchan/Kanchann' brand gutka and 'wiz' brand pan masala manufactured clandestinely without declaring the said premises as registered premises for manufacture of the said gutka. The contention of M/s.Kuber is that they were not involved in the activity of manufacture of gutkhas and the said activity was illicit and misused of their brand name and goodwill of the appellant by certain elements who were ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n proceedings as in criminal proceedings relating to prosecution. Therefore, sub-section (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 of proving the truth of the facts contained therein. If the circumstances are absent, therefore, the statement, which has been made during the course of inquiry/investigation, before a gazette Central Excise Officer, cannot be treated as relevant for the purpose of proving the facts contained therein as observed by Hon'ble Delhi High Court in the case of J.k.Cigarettes (supra) wherein hon'ble high court has observed as under:- 12. Bare reading of the above section manifests that under certain circumstances, as stipulated therein, statement made and signed by those persons before any Central Excise Officer of a gazetted rank during the course of inquiry or proceedings under this Act can be treated as relevant and taken into consideration if under the given circumstances such a person cannot be produced for cross-examination. Thus, this provision makes such statements relevant for the purposes of proving the truth of the fact....
X X X X Extracts X X X X
X X X X Extracts X X X X
....High Court has observed as under:- 9. It is not the duty of the Court to direct the parties or compel 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 the Court. But the duty of the court is only to appreciate the case in the proper perspective and on the basis of what is placed before the Court. Even with regard to the prayer for permitting the applicant to cross-examine the plaintiff, the prayer is misconceived as the question of cross examination arises only when a witness has tendered evidence in chief-examination. Under section 138 of the Indian Evidence Act, cross-examination follows chief-examination, but not without chief-examination. If there is no chief-examination, there is no cross examination. It is only witness who is examined in chief who can be cross-examined. Therefore, a prayer for cross-examination of the plaintiff even when the plaintiff has not been examined in chief is ridiculous and not provided for under Section 138 of the Evidence Act. The Trial Court has rightly rejected the application. No scope for interference with an order of this nature. 11. We further find....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 the facts to which the witness testified on his examination-in-chief. Direction for re-examination. - The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter." 10. We therefore find force in the submission of the ld. counsel for the appellant. We find no reason to justify rejection of request made by the appellant to the adjudicating authority in light of Section 138B of the Act, to summon witnesses for examination and to offer them for cross-examination if their statements were to be considered as relevant and admitted in evidence in the interest of justice. 12. We further find in the case of Bussa Overseas Properties Ltd., this Tribunal again observed as under:- 24. The fact that in cases relating to smuggling or indeed ....