TaxTMI 
TaxTMI 
2017 (7) TMI 437
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.... coal which are required in equal quantity as the production process of the SM Industries is coal based. The department officials on a visit to the appellants factory and office premises and resuming various records, after recording statements of several persons held a view that appellant had clandestinely manufactured and cleared sponge iron during the period 1.4.2003 to 20.08.2004. Coming to such conclusion a show cause notice dated 23.08.2005 was issued to appellants. The appellants herein contested the show cause notice on merits as well as on limitations and also sought cross examinations of various persons on whose statements the lower authorities were relying on the show cause notice for example purchasers of the goods, transporters,....
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.... find from the records that the adjudicating authority as in the impugned order at paragraph no.70 as regards the request for cross examinations has held as under: 70. Further I observe that the notices called for the cross examination of 17 witnesses. Out of 17 witnesses, 5 witnesses appeared and 3 of them were examined. The Consultant preferred not to examine Shri S. Vijayanand & Shri R. Vijay Kumar. Out of the remaining 12, 5 summons were returned back with the remark party left etc. As regards remaining 7 witnesses, summons were sent to them on 01.06.2006, 27.06.2006, 21.07.2006 and 29.08.2006 giving different opportunities to appear for cross examination on 27.06.06, 18.07.06, 21.08.06 and 14.09.06. In all these instances, these witne....
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....Section 9D(1), viz. (i) 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 interests of justice. 17. There is no justification for jettisoning this procedure, statutorily prescribed by plenary Parliamentary legislation for admitting, into evidence, a statement recorded before the Gazetted Central Excise Officer, which does not suffer from the handicaps contemplated by clause (a) of Section 9D(1) of the Act. The use of the word shall in Section 9D(1), makes it clear that, the provisions contemp....
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....raightaway 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 cases, if he wants to rely on the said statement as relevant, for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) of Section 9D(1). For this, he has to summon the person who had made the statement, examine him as witness before him in the adjudication proceeding, and arrive at an opinion that, having regard to the circumstances of the case, the statement should be admitted in the interests of justice. 20. In fact, Section 138 of the Indian Evidence Act, 1872, clearly set....
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....urt in C.C. v. Bussa Overseas Properties Ltd., 2007 (216) E.L.T. 659 (S.C.), which upheld the decision of the Tribunal in Bussa Overseas Properties Ltd. v C.C., 2001 (137) E.L.T. 637 (T). 25. In the light of the above, respondent no. 2 is directed to adjudicate the show cause notice issued to the writ petitioners by following the procedure contemplated by Section 9D of the Act and the law laid down by various judicial authorities in this regard, including the principles of natural justice, in the following manner : (i) In the event that the Revenue intends to rely on any of the statements, recorded under Section 14 of the Act and referred to in the show cause notices issued to Ambika and Jay Ambey, it would be incumbent on the Revenue to....
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....he back of an assessee cannot be relied upon, in adjudication proceedings, without allowing the assessee an opportunity to test the said evidence by cross-examining the makers of the said statements. If at all authority is required for this proposition, reference may be made to the decisions of the Hon'ble Supreme Court in Arya Abhushan Bhandar v. U.O.I., 2002 (143) E.L.T. 25 (S.C.) and Swadeshi Polytex v. Collector, 2000 (122) E.L.T. 641 (S.C.). 6. As the law on the examination cross examination is settled, in the case in hand the appellants were seeking the cross examination of various persons and the same having not been granted to them, the impugned order is unsustainable on this ground only. Since we are convinced that there is violat....