TaxTMI 
TaxTMI 
TaxTMI 
2016 (7) TMI 153
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....ses of Laxmi Wire Netting & Weaving Factory, Delhi and resumed certain documents, and also recorded the statement of Ram Niwas Jain, partner. The premises of M/s Star Aluminium Corporation was also searched and the statement of Pradeep Gupta, partner was recorded. The statements of the transporters, namely, Gurinder Pal Singh of M/s Kanpur Calcutta Goods Carrier, New Delhi, Manmeet Singh of M/s. Renukoot Goods Carrier Delhi, Ramashankar Shukla of Renukoot Goods Carrier, Jitendar Narula, owner of vehicle No. DL-IM 0928, Som Bhutani, owner of vehicle No. 1LE-8992, Kamshwar Singh, owner of vehicle No. DL-1LC-8601 were recorded. Statement of Vikshit Chadha of BALCO was also recorded by the officers. Statements of certain transporters were also recorded and certain records were resumed. After through investigation, a show cause notice was issued to the appellant alleging that the appellant has availed inadmissible credit amounting to Rs. 4,28,62,938/- as basic excise duty and Rs. 8,66,538 as cess during the period 2004-05 and 2005-06 and Rs. 9,45,338/- on the Excise Invoices issued by various consignors in violation of Rules 3 and 4 of Cenvat Credit Rules 2004 without actual recei....
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....e given up and do not constitute relevant evidence. 5. He further submitted that as per section 138 of the Evidence Act, 1872 clearly set out the sequence of evidence, in which evidence-in-chief has to precede cross-examination, and cross-examination has to be preceded re-examination. Once adjudication and criminal proceedings have been parallelized by J.K. Cigarettes (supra) in that event in the absence of examination-in-chief, there can be no question of cross examination would apply which is what the words "when the person who made the statement is examined as a witness in the case before the court". 6. He also referred to the decision in the case of Shardadamma v. kenchamma, MANU/KA/8690/2006. He also relied upon the decision of Hon'ble Punjab & Haryana High Court in the case of Sukhwant Singh - 1995 3 SCC 367 and the decision of Swiber offshore Construction Pvt. Ltd. -2014 (301) ELT 119 (Tri.), He further submitted that in the case of Parmarth Iron Pvt. Ltd. -2010 (260) ELT 514 (All) Hon'ble High Of Allahabad has observed the same. He submitted that in the case of Bussa Overseas Properties Ltd. - 2001 (137) ELT 637 (T) wherein this Tribunal has held that th....
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.... the appellant. He submitted that by not allowing the cross examination of persons whose statements were sought to be relied upon is impermissible as held by Hon'ble Delhi High Court in the case of Basudev/Garg vs CC-2013 (294) ELT 353 (Del) and J.K. Cigarettes Ltd. (supra). Therefore, he prayed that the impugned order is to be set aside. 10. On the other hand, learned AR supported the impugned order and submitted that ample opportunity has been given to the appellant for personal hearing of the case but the appellant chooses not to appear and necessity of supplying of non-relied upon documents cross examination of the witness were not required in the facts and circumstances of the case. It is also submitted that the statements of the witnesses relied upon by the adjudicating authority under section 14 of Central Excise Act, 1944 which is admissible evidence therefore, there is no infirmity in the impugned order. 11. Heard the parties and considered the submissions. 12. After hearing both sides, we find that the appellant has challenged the impugned order on the following grounds: (a) non-relied upon documents have not been supplied before adjudication (b) no....
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....ircumstances - (1)A statement made and signed by a person before any Central Excise Officer of a gazetted 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 the 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," 8. The main contention of the appellant is that the deponents whose statements have been relie....
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....ut undue delay or expense. Whether such a finding was otherwise justified or not can be taken up in the appeal. 9. In other words, in the absence of the circumstances specified in section 9D(1), the truth of the facts contained in any statement, recorded before a gazetted Central Excise officer, has to be proved by evidence other than the statement itself. The evidentiary value of the statement, in so far as proving the truth of the contents thereof is concerned, therefore, completely lost, unless and until the case falls within the parameters of section 9D(1). Therefore, two steps are required to be followed by the adjudicating authority, under clause (b) of section 9D(1) (t) the person who made the statement has to first be examined as a witness in the case before the adjudicating authority, and (ii) the adjudicating authority has, thereafter, to form the opinion that, having regard to the circumstances of the case, the statement should 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:- 16. We, therefore, have no hesita....
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.... without there being any objective formation of opinion based on any material on record to come to the conclusion that any specified circumstance mentioned in Section 138B(1)(a) exists. These circumstances mentioned in Section 138B(1)(a) are also contained in pan materia Section 9D(1)(a) and were recorded as follows in J.K. Cigarettes Ltd., 2009 (242) E.L.T. 189 (Del.) "25. Section 9D of the Act stipulates following five circumstances, already taken note of, under which statements previously recorded can be made relevant. These are:- (a) when the person who had given the statement is dead; (b) when he cannot be found; (c) when he is incapable of giving evidence; (d) when he is kept out of the way by the adverse party; and (e) when his presence cannot be obtained without an amount of delay or expense, which the Officer considers unreasonable." These circumstances show that 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 witnes....
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....s. - 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 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." 9. It would, thus be seen that Section 138 (supra) envisages that a witness would first be examined-in-chief and then subjected to cross-examination and for seeking any clarification, the witness may be 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....